Matter of Coastal Communication Serv. Inc. v New York City Dept. of Info. Tech. & Telecom.

Matter of Coastal Communication Serv., Inc. v New York City Dept. of Info. Tech. & Telecom. 2007 NY Slip Op 07320 [44 AD3d 309] October 2, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 12, 2007

In the Matter of Coastal Communication Service, Inc., et al., Appellants,
v
New York City Department of Information Technology and Telecommunications, Respondent.

—[*1] Schiff Hardin LLP, New York (David Jacoby of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York (Karen M. Griffin of counsel), for respondent.

Judgment, Supreme Court, New York County (Michael D. Stallman, J.), entered on or about July 11, 2006, which dismissed this CPLR article 78 proceeding to invalidate section 6-06 (c) of title 67 of the Rules of the City of New York, unanimously affirmed, without costs.

It is undisputed that section 6-06 (c), prohibiting the display of advertising in certain public telephone enclosures in Manhattan, became final and binding on December 4, 2004. Petitioners filed a motion for leave to amend their federal complaint on March 28, 2005 to include claims pertaining to that section. The federal court decided the motion on August 2 of that year, and the instant petition was filed on September 1. Even if the statute of limitations was tolled between March 28 and August 2, 2005 (see Perez v Paramount Communications, 92 NY2d 749 [1999]), more than four months elapsed between December 4, 2004 and September 1, 2005, to wit: three months and 24 days elapsed between December 4, 2004 and March 28, 2005, and one month between August 2 and September 1, 2005. Therefore, petitioners' attack on section 6-06 (c) is time-barred (see CPLR 217 [1]). We will not permit petitioners to do an end-run around the statute of limitations by attacking the June 2005 notices to proceed instead of the regulation itself (see Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 n [2005]). [*2]

In light of our disposition, we find it unnecessary to reach the substantive arguments raised by petitioner. Concur—Lippman, P.J., Tom, Nardelli, Gonzalez and Kavanagh, JJ. [See 12 Misc 3d 1179(A), 2006 NY Slip Op 51313(U).]