The Second Department reversed Supreme Court and determined that a recent reconsideration of the proper remedial measures for a hazardous waste site on petitioner’s property restarted the four-month statute of limitations for challenging the Department of Environmental Conservation’s (DEC’s)/Town’s ruling, even though the conclusion reached after reconsideration was the same as was reached in 1995:
“[A] proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner (CPLR 217). An administrative determination becomes final and binding’ when (1) the administrative agency reached a definitive position on the issue that inflicts actual, concrete injury; and (2) the injury inflicted may not be significantly ameliorated by further administrative action or by steps available to the complaining party'” … .
In general, a request for discretionary reconsideration does not serve to extend the statute of limitations or render an otherwise final determination nonfinal … . This is because “[a] motion to reconsider generally seeks the same relief, and advances factual and legal issues that were previously litigated at the administrative level” … .
However, where “the agency conducts a fresh and complete examination of the matter based on newly presented evidence,” an aggrieved party may seek review in a CPLR article 78 proceeding commenced within four months of the new determination … .
Here, a different factual presentation was invited … by the DEC, and conducted by the Town. Matter of Riverso v New York State Dept of Envtl Conservation, 2015 NY Slip Op 01644, 2nd Dept 2-25-15