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In re Margaret Van Tol

Supreme Court of New York, Fourth Department

June 28, 2013

IN THE MATTER OF MARGARET VAN TOL, INDIVIDUALLY AND DOING BUSINESS AS CvT PROPERTIES, PETITIONER-APPELLANT,
v.
CITY OF BUFFALO, CITY OF BUFFALO FIRE DEPARTMENT, GARNELL W. WHITFIELD, JR., AND CITY OF BUFFALO FIRE INVESTIGATION UNIT, RESPONDENTS-RESPONDENTS.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered November 14, 2011 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

TRONOLONE & SURGALLA, P.C., HAMBURG (GERARD A. STRAUSS OF COUNSEL), FOR PETITIONER-APPELLANT.

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (CINDY T. COOPER OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.

PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND LINDLEY, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to compel respondents to conduct an investigation, pursuant to General Municipal Law § 204-d, into two fires at two rental properties she owned. Supreme Court properly dismissed the petition on the ground that the proceeding was not timely commenced. We note at the outset that the relief requested in the petition is in the nature of mandamus to compel inasmuch as petitioner seeks to "compel the performance of a ministerial act [imposed] by law" (Matter of De Milio v Borghard, 55 N.Y.2d 216, 220; see Matter of Heck v Keane, 6 A.D.3d 95, 99). In such a proceeding, the four-month statute of limitations begins to run when a respondent refuses a petitioner's demand that it "perform its duty" (CPLR 217 [1]; see Matter of Schwartz v Morgenthau, 23 A.D.3d 231, 233, affd 7 N.Y.3d 427; Austin v Board of Higher Educ. of City of N.Y., 5 N.Y.2d 430, 442). The petitioner's "demand must be made within a reasonable time after the right to make the demand occurs" (Matter of Devens v Gokey, 12 A.D.2d 135, 136, affd 10 N.Y.2d 898; see Matter of Densmore v Altmar-Parish-Williamstown Cent. Sch. Dist., 265 A.D.2d 838, 839, lv denied 94 N.Y.2d 758). Here, petitioner made a February 8, 2010 written demand to the Erie County District Attorney's Office to conduct a further investigation. The Erie County District Attorney's Office, however, is not a named respondent, and we conclude that petitioner "unreasonably delayed" in failing to make the demand to respondents on February 8, 2010 and that "this proceeding is barred by laches" (Densmore, 265 A.D.2d at 839).

In light of our determination, we need not address the issue whether the petition failed to state a cause of action for which relief can be granted.


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