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DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT).

The Second Department determined plaintiffs’ declaratory judgment action should have been brought as an Article 78 proceeding and was properly dismissed as untimely. The action concerned alleged violations of height restrictions on new construction which had been the subject of a final environmental impact statement (FEIS):

An action for a declaratory judgment is generally governed by a six-year statute of limitations (see CPLR 213[1]). However, where a declaratory judgment action involves claims that could have been made in another proceeding for which a specific limitation period is provided, the action is subject to the shorter limitations period … . Where an action could have been brought pursuant to CPLR article 78, the four-month statute of limitations applicable to such proceedings applies … .

A proceeding pursuant to CPLR article 78 may be brought to review a determination of a public body or officer which is “final and binding upon the petitioner” (CPLR 217[1]; see CPLR 7801[1]). There are two requirements for fixing the time when agency action is final and binding upon the petitioner: “First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party” … . A determination is final and the statute of limitations begins to run when the agency’s “definitive position on the issue [becomes] readily ascertainable” to the complaining party … , so that the petitioner knew or should have known that it was aggrieved… .

Here, the Supreme Court properly determined that this action could have been brought as a proceeding pursuant to CPLR article 78 … . Save The View Now v Brooklyn Bridge Park Corp., 2017 NY Slip Op 09189, Second Dept 12-27-17

CIVIL PROCEDURE (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/DECLARATORY JUDGMENT  (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/ARTICLE 78 (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/ENVIRONMENTAL LAW (BUILDING HEIGHT RESTRICTIONS , ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))/ADMINISTRATIVE LAW  (ARTICLE 78 VERSUS DECLARATORY JUDGMENT, DECLARATORY JUDGMENT ACTION ALLEGING VIOLATION OF BUILDING HEIGHT RESTRICTIONS WAS UNTIMELY BECAUSE THE ACTION SHOULD HAVE BEEN BROUGHT AS AN ARTICLE 78 PROCEEDING (SECOND DEPT))

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