In a Hybrid Action, the Causes of Action Seeking Money Damages Were Distinct from the Causes of Action Seeking Annulment of Town a Resolution/Four-Month Statute of Limitations Did Not Apply to Causes of Action Seeking Money Damages

The First Department determined that certain causes of action in a hybrid proceeding were not time-barred by the four-month statute of limitations for Article 78 proceedings. When the plaintiffs did not repair the property which was alleged to endanger a drinking water source, the town had the property repaired pursuant to a town resolution and a special tax assessment was imposed to pay for the repairs.  The plaintiffs brought a hybrid proceeding challenging the resolution and tax assessment and seeking damages for the destruction of plaintiffs’ property and the interruption of plaintiffs’ business. The causes of action seeking damages were not barred by the four-month statute:

In the fourth, fifth, sixth, and seventh causes of action, the plaintiffs sought, in effect, to annul the tax assessment referable to the cost of demolition of the retaining wall and rear wall of the building and the rebuilding of the retaining wall and, by implication, sought to annul the Resolution authorizing the demolition and the assessment against the property. They likewise contended that the Town failed to give them proper notice and an opportunity to be heard, as required by section 66-11. Since the substance of these causes of action was a challenge to administrative decisions and a special tax assessment, the court properly concluded that these causes of action constituted requests for relief pursuant CPLR article 78, regardless of the form in which they were pleaded … . * * *

The court erred … in granting those branches of the Town’s motion which were for summary judgment dismissing the first, second, third, and eighth causes of action. These causes of action assert claims, inter alia, for damages resulting from the destruction of a portion of the garage building and the interruption of the plaintiffs’ business. Pursuant to CPLR 7806, where a CPLR article 78 petitioner seeks damages as well as the annulment of a governmental determination, “[a]ny restitution or damages granted to the petitioner must be incidental to the primary relief sought by the petitioner, and must be such as he [or she] might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against the same body or officer in its or his official capacity” (CPLR 7806). “[W]here the thrust of the lawsuit is the review of an adverse . . . agency determination, with the monetary relief incidental, [the] Supreme Court may entertain the entire case under CPLR article 78” … . “Whether the essential nature of the claim is to recover money, or whether the monetary relief is incidental to the primary claim, is dependent upon the facts and issues presented in a particular case” … . Contrary to the Supreme Court’s determination, the claims asserted in the first, second, third, and eighth causes of action, in which the plaintiffs sought money damages, were not incidental to the plaintiffs’ CPLR article 78 challenges to the Resolution and the special tax assessment … . Therefore, these causes of action were not asserted in connection with the CPLR article 78 portion of this hybrid action/proceeding, and were not barred by the four-month statute of limitations applicable to CPLR article 78 proceedings (see CPLR 217). Hertzel v Town of Putnam Val, 2014 NY Slip Op 06558, 2nd Dept 10-1-14