Matter of New York State Assn. of Cemeteries Inc. v Fishman

[*1] Matter of New York State Assn. of Cemeteries Inc. v Fishman 2006 NY Slip Op 51802(U) [13 Misc 3d 1212(A)] Decided on September 14, 2006 Supreme Court, Albany County Ceresia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 14, 2006
Supreme Court, Albany County

In the Matter of the Application of New York State Association of Cemeteries, Inc., Plaintiff,

against

Richard D. Fishman, as Director of the New York State Division of Cemeteries, Antonia C. Novello, as Commissioner of Health of the State of New York and a member of the New York State Cemetery Board, Eliot Spitzer, as Attorney General of the State of New York and a member of the New York State Cemetery Board, Defendants.



7555-05

George B. Ceresia, J.

The New York State Cemetery Board was created, as relevant here, "[t]o adopt such reasonable rules and regulations as the cemetery board shall deem necessary for the proper [*2]administration of this article [FN1]" (see N-PCL § 1504 [c]). For many years prior to 1985, the rules and regulations of the Cemetery Board prohibited cemetery corporations from compelling lot owners to utilize a non-wooden outer container within cemetery graves [FN2]. The prohibition was found to impose an undue hardship upon public cemeteries in that graves which did not have a concrete outer container were prone to sinking over time (as the wooden caskets gradually collapsed), thereby necessitating that cemeteries perform costly repair work [FN3]. As a consequence, the Cemetery Board, in 1984, revised § 202.6 of the Rules of the Department of State to authorize cemeteries, under certain conditions, to require lot owners to purchase either a concrete grave liner or a concrete burial vault (see 19 NYCRR former § 202.6, filed and effective December 27, 1984, referred to hereinafter as "former Rule 202.6"). Once it was determined that cemetery corporations should be permitted to require either a grave liner or a burial vault in its graves, the Cemetery Board considered whether cemetery corporations should be permitted to sell these items to the purchasers of cemetery lots. The Cemetery Board determined that cemetery corporations should be permitted to sell grave liners, but not burial vaults (see former Rule 202.6 [c] [5])[FN4]. The prohibition against sale of burial vaults was carried forward into the current version of the Rule, enacted on February 14, 1990 (see § 201.6 [6] of the Rules of the Department of State, 19 NYCRR § 201.6 [6], hereinafter "current Rule 201.6 [6]").

On December 21, 2005 plaintiff commenced the above-captioned action for a judgment declaring that the Cemetery Board exceeded its authority in promulgating current Rule 201.6 (6) insofar as it prohibits the sale of burial vaults by Cemetery Corporations. Plaintiff also alleged that its rights under the State and Federal Constitutions have been violated. Defendants served an answer containing several affirmative defenses including the following: that the action was untimely commenced; that plaintiff failed to obtain jurisdiction over all necessary parties; that plaintiff lacks standing; and that the complaint fails to state a cause of action. Plaintiff has made a motion for summary judgment on plaintiff's first cause of action (which alleges that the Cemetery Board did not have the authority to promulgate current Rule 201.6 [6]). Defendants oppose the motion, and have cross-moved for summary judgment on grounds that the action is untimely in that plaintiff should have asserted its claims in a proceeding brought pursuant to CPLR Article 78, which is subject to a four-month statute of limitations.

Turning first to the defendants' cross-motion, it is well settled that an administrative [*3]determination becomes final and binding, and the applicable statute of limitations begins to run, when the administrative action has its impact upon a party and it is clear that the party is aggrieved thereby (see, Matter of Edmead v. McGuire, 67 NY2d 714, 716; New York City Off Track Betting Corp. v. State of New York Racing & Wagering Bd., 196 AD2d 15, 18, lv denied 84 NY2d 804; Matter of Hunt Brothers Contractors, Inc. v. Glennon, 214 AD2d 817, 818-819 [Third Dept., 1995]; Matter of Biondo v State Bd. of Parole, 60 NY2d 832, 834; Mundy v Nassau County Civ. Serv. Comm., 44 NY2d 352, 357). As stated in Matter of Save the Pine Bush, Inc. v City of Albany (70 NY2d 193 [1987]), "[i]n order to determine the statute of limitations applicable to a particular declaratory judgment action, the court must examine the substance of that action to identify the relationship out of which the claim arises and the relief sought'" (Matter of Save the Pine Bush, Inc. v City of Albany, supra , p. 202, quoting Solnick v Whalen, 49 NY2d 224, 229). "If no specific limitation period is provided, the declaratory judgment action is governed by the catch-all six-year period set forth in CPLR 213(1)." (American Independent Paper Mills Supply Co., Inc. v County of Westchester, 16 AD3d 443, at p. 444 [2nd Dept., 2005]).

The Court is also mindful that when dealing with a challenge to a statute, law or ordinance, a CPLR Article 78 proceeding is the proper vehicle for seeking review of the procedures followed in its adoption (see Matter of Save the Pine Bush, Inc. v City of Albany, supra , at p. 202). Where the substance of the law (i.e., its wisdom and merit), or its constitutionality, is challenged, then the proper procedure is to commence an action for a declaratory judgment (see P & N Tiffany Properties, Inc. v Village of Tuckahoe, ___ AD3d ___, 817 NYS2d 345, at pp. 347-348 [2nd Dept., June 13, 2006]).

In Matter of Federation of Mental Health Centers, Inc. v DeBuono (275 AD2d 557 [3rd Dept., 2000]) the petitioner, a not-for-profit corporation comprised of 22 licensed and certified mental health providers located in New York City, commenced a CPLR Article 78 proceeding to challenge actions taken by the New York State Commissioner of Health with respect to enactment of certain regulations (14 NYCRR parts 588, 592). As relevant here, the Appellate Division affirmed Supreme Court's determination that the enactment of 14 NYCRR part 592 in 1991 was quasi-legislative, requiring application of the four-month statute of limitations. The Court commented: "[p]etitioner's attempt to couch the fourth and fifth causes of action in constitutional equal protection and due process terms does not avoid the application of the four-month statute of limitations, as the essence of [petitioner's] challenge [was] to the specific actions of an administrative agency'" (Matter of Federation of Mental Health Centers, Inc. v DeBuono, supra , at p. 560, quoting Matter of Roebling Liqs. v Urbach, 245 AD2d 829, 830, appeal dismissed and lv denied 91 NY2d 948).

The Court discerns nothing to distinguish Matter of Federation of Mental Health Centers, Inc. v Debuono (supra ) from the instant action. Plaintiff's causes of action accrued, and the limitations period commenced to run, upon enactment of former Rule 202.6 on December 27, 1984 or, at the very latest, upon enactment of current Rule 201.6 (6) on February 14, 1990 (see Matter of Federation of Mental Health Centers, Inc. v DeBuono, supra , at p. 560, note 2). The Court finds the adoption of the Rules in question to be quasi-legislative, requiring application of the four month statute of limitations under CPLR § 217 (see id.). Notably, however, irrespective of which statute of limitations is deemed applicable, CPLR § 217 or CPLR § 213 (1) it is clear that the action is untimely, as the longer limitations period has long since expired. The Court finds that the action must be dismissed.

The Court need not address the remaining issues.

The Court concludes that the cross-motion for summary judgment dismissing the complaint must be granted.

Accordingly, it is

ORDERED, that plaintiff's's motion for summary judgment is denied; and it is further

ORDERED, that defendants' cross-motion for summary judgment is granted; and it is [*4]further

ORDERED, that the complaint be and hereby is dismissed.

This shall constitute the decision/order of the Court. All papers are returned to the attorney for the defendants, who is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this Decision/Order with notice of entry.

Dated: September 14, 2006

Troy, New YorkS/______________________________________

George B. Ceresia, Jr.

Supreme Court Justice Footnotes

Footnote 1:The word "article" refers to Article 15 of the New York Not-For-Profit Corporation Law ("N-PCL"), entitled "Public Cemetery Corporations".

Footnote 2:By way of example, Former § 202.6 (c) of the Rules of the Department of State, filed and effective May 18, 1978 recited, in part, as follows: "The Cemetery Board hereby affirms its ruling that a plot owner may not be compelled to use any particular type of outer case." (see 19 NYCRR former § 202.6, filed and effective May 18, 1978).

Footnote 3:See former § 202.6 (c) of the Rules of the Department of State (19 NYCRR former § 202.6), filed and effective December 27, 1984, which contains a finding by the Cemetery Board that the foregoing condition has resulted in "real hardship" to Cemetery Corporations.

Footnote 4:As set forth in former Rule 202.6, the specifications for construction of burial vaults and grave liners were exceedingly similar. Both structures were constructed of concrete (see former Rule 202.6, 19 NYCRR former § 202.6, filed and effective December 27, 1984). The major difference was that a burial vault was to be completely sealed, whereas a grave liner was unsealed with two holes in or near the bottom to allow for the discharge of water (see id.). The specifications for both structures, initially set forth in former Rule 202.6 have been carried forward, unchanged, into the current version of the rule (see current Rule 201.6, 19 NYCRR § 201.6).