Panetta v Carroll

[*1] Panetta v Carroll 2007 NY Slip Op 52674(U) [29 Misc 3d 1225(A)] Decided on July 25, 2007 Supreme Court, Westchester County Adler, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 25, 2007
Supreme Court, Westchester County

Cosimo Panetta, Petitioner,

against

Richard Carroll, Inspector of Buildings of the VILLAGE OF MAMARONECK BUILDING DEPARTMENT and VILLAGE OF MAMARONECK, Respondents.



24093-06



THE VOZZA LAW FIRM

Attorneys for Petitioner

910 East Boston Post Road, 2nd Floor

Mamaroneck, New York 10543

By: Antonio Vozza, Esq.

AHMUTY, DEMERS & McMANUS, ESQS.

Attorneys for Respondents

200 I.U. Willets Road

Albertson, New York 11507

By: Matthew P. Donohue, Esq.

Lester B. Adler, J.

Petitioner seeks judgment pursuant to Article 78 of the Civil Practice Law and Rules for an order directing respondents Richard Carroll, as the Inspector of Buildings of the Village of Mamaroneck Building Department, and the Village of Mamaroneck (collectively referred to as the "respondents") to issue a permanent certificate of occupancy for the single-family residence located at 514 Pine Street in the Village of Mamaroneck, New York. Petitioner contends that respondents' refusal to issue a permanent certificate of occupancy is arbitrary, capricious and in bad faith. In lieu of an answer, respondents move to dismiss the petition upon objections in point of law that: 1) the proceeding is time-barred pursuant to CPLR §217 (see CPLR §3211[a][5]); and 2) the petition fails to state a cause of action (see CPLR §3211[a][7]).

FACTUAL BACKGROUND

On August 7, 2001, petitioner filed an application for a building permit to construct a single-family residence on a vacant parcel of land identified on the Tax Assessment Map of the Village of Mamaroneck as Section 4, Block 54, Lot 2, and known as 514 Pine Street. In connection with the application, a hearing was held before the Planning Board of the Village of [*2]Mamaroneck (the "Board") to determine whether there had been compliance with Village Law §7-736.[FN1] The sole issue identified by the Board to be determined in connection with this inquiry was whether or not that portion of Pine Street where the single-family was to be located was suitably improved to allow safe and proper access to the property.

The hearing commenced on September 13, 2001, and concluded on November 29, 2001, at which time the Board voted to adopt a resolution which included, inter alia, findings that: 1) Pine Street was a public road; 2) there was no need for the construction of a cul de sac as suggested by neighbors; and 3) the Village of Mamaroneck consulting engineer had reviewed the plans submitted in connection with the application for the building permit and found the provisions for drainage to be adequate. Under the circumstances presented, a majority of the Board members found that petitioner's proposal complied with the requirements of Village Law §7-736, that Pine Street would be suitably improved as proposed, and that prior to commencement of any work petitioner was to post a performance bond.

A building permit was subsequently issued on March 5, 2002. Upon completion of the structure, a temporary certificate of occupancy, which was contingent upon the final "street surface," was issued on December 16, 2002. Petitioner alleges that since the issuance of the temporary certificate of occupancy, respondents have refused to issue a permanent certificate of occupancy and have stated no valid reason for refusing to do so. Petitioner further alleges that "as recent as November 10, 2006" he made a written demand that the building inspector issue a certificate of occupancy for the structure constructed on the lot.

This written demand referred to by petitioner was not the first such demand made to the building inspector. By letter dated April 17, 2003 to Robert Yamuder (who at the time was the building inspector for the Village of Mamaroneck), petitioner's prior counsel argued that petitioner had complied with the engineering specifications and requirements of the Village and requested that Mr. Yamuder "forthwith expedite the issuance of a final certificate of occupancy." In response, by letter dated April 23, 2003, the attorney for the Village of Mamaroneck disputed the accuracy of the claim that all specifications had been met, stating that there were many issues regarding drainage which had not been addressed and that the drainage work that had been performed was not satisfactory. The letter concluded with the statement that all work regarding drainage must be completed to the satisfaction of the Village of Mamaroneck prior to the [*3]issuance of a certificate of occupancy.

LEGAL ANALYSIS

The parties agree, and the Court concurs, that this is a proceeding in the nature of mandamus to compel respondents to issue a permanent certificate of occupancy for the single-family residence located at 514 Pine Street. It is well settled that "an [A]rticle 78 proceeding in the nature of mandamus as well as one in the nature of certiorari to review is controlled by the four-month [s]tatute of [l]imitations [of CPLR 217]" (Austin v. Board of Higher Educ. of City of NY, 5 NY2d 430, 442, 186 NYS2d 1, 158 NE2d 681).[FN2] Before commencing a proceeding in the nature of mandamus to compel, "it is necessary to make a demand and await refusal" (Matter of Vestal Teacher's Assn. v. Vestal Cent. School Dist., 5 AD3d 922, 923, 773 NYS2d 468, quoting Matter of Agoado v. Board of Educ. of City School Dist. of City of NY, 282 AD2d 602, 603, 723 NYS2d 236; EMP of Cadillac v. Assessor of Vil. of Spring Valley, 15 AD3d 336, 338, 789 NYS2d 522; Schwartz v. Morgenthau, 23 AD2d 231, 233, 803 NYS2d 554, affd. 7 NY3d 427, 823 NYS2d 761, 857 NE2d 56). The statute of limitations begins to run on the date of the refusal to comply with the demand to perform and expires four months thereafter (Yonkers Racing Corp. v. City of Yonkers, 301 AD2d 592, 592, 754 NYS2d 48; Matter of Heck v. Keane, 6 AD3d 95, 98, 774 NYS2d 214).

In the present case, in order to dismiss the petition pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, respondents "bear[] the initial burden of establishing prima facie that the time in which to sue has expired" (Savarese v. Shatz, 273 AD2d 219, 220, 708 NYS2d 642). The respondents have sustained this initial burden of proof by offering documentary evidence that a demand to issue a permanent certificate of occupancy was made on April 17, 2003, and that a refusal to comply was made on April 23, 2003 (see Id.).[FN3] Having demonstrated that petitioner's claim accrued more than four months before the commencement of the instant action, the burden thus shifted to petitioner to "aver evidentiary facts establishing that [the proceeding] falls within an exception to the statute of limitations, or to raise an issue of fact as to whether such an exception applies" (Gravel v. Cicola, 297 AD2d 620, 621, 747 NYS2d 33).

Petitioner has offered no evidence, documentary or otherwise, to establish the applicability of any exception to the statue of limitations, nor has he submitted any evidentiary [*4]facts which are sufficient to raise an issue of fact as to whether such an exception applies.

Based on the foregoing, it is hereby

ORDERED, that respondents motion pursuant to CPLR §7804(f) and §3211(a)(5) to dismiss the petition as untimely is granted.[FN4]

Dated: White Plains, New York

July 25, 2007

Hon. Lester B. Adler

Supreme Court Justice Footnotes

Footnote 1:Village Law §7-736(2) provides, in pertinent part, that:

"No permit for the erection of any building shall be issued unless a street or highway giving access to such proposed structure has been duly placed on the official map or plan * * * * Before such permit shall be issued such street or highway shall have been suitably improved to the satisfaction of the planning board in accordance with standards and specifications approved by the appropriate village officers as adequate in respect to the public health, safety and general welfare of the special circumstances of the particular street or highway, or alternatively, and in the discretion of such board, a performance bond sufficient to cover the full cost of such improvement as estimated by such board or other appropriate village departments designated by such board shall be furnished to the village by the owner."

This statutory provision further authorizes a village to require a property owner to improve the street or means of access off-site as a prerequisite to issuance of a building permit (see Sorg v. Zoning Bd. of Appeals of Vil./Town of Mt. Kisco, 248 AD2d 622, 670 NYS2d 511, lv. denied 92 NY2d 804, 677 NYS2d 779, 700 NE2d 318).

Footnote 2:The Court is unpersuaded by respondent' argument that a 30-day statute of limitations is applicable in the present case. The 30-day statute of limitations provided for in Village Law §7-712-c, upon which respondents rely, applies to decisions rendered by a zoning board of appeals and begins to run upon the filing of a decision of such a board with the village clerk. This proceeding does not involve a decision of a zoning board of appeals. Moreover, the alleged aggrievement does not arise from a final determination but from the refusal of respondents to act or to perform a duty allegedly enjoined upon them by law (see Austin v. Board of Higher Educ. of City of NY, 5 NY2d at 442).

Footnote 3:Respondents argue in the alternative that the claim accrued on December 16, 2002 when the building inspector made the decision to issue a temporary certificate of occupancy for the premises. The case law on this point is well established and clear; the statute of limitations does not begin to run until such time as there has been a demand and a refusal to comply.

Footnote 4:Because the petition is being dismissed in its entirety, the Court declines to address respondents' motion to dismiss pursuant to CPLR §3211(a)(7).