D. Joyce, Stony Point, NY, for appellants.
S. Edwards, Town Attorney, Orangeburg, NY (Dennis D. Michaels
of counsel), for respondent.
C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action, inter alia, to recover damages pursuant to 42 USC
§ 1983 for civil rights violations, the plaintiffs
appeal from an order of the Supreme Court, Rockland County
(Garvey, J.), dated June 4, 2015, which granted the
defendant's motion pursuant to CPLR 3211(a)(5) to dismiss
that the order is affirmed, with costs.
plaintiffs own a parcel of real property in the Town of
Orangetown in a zoning district that permits only one
dwelling per lot. In 1985, they applied for a variance from
the Town's Zoning Board of Appeals (hereinafter the ZBA)
to allow them to build a "garage w/dwelling for
immediate family (mother)." The ZBA granted the
variance, the plaintiffs built the second dwelling, and the
Town issued a certificate of occupancy for the second
dwelling which specified that the permitted use was
"garage with dwelling for immediate family
(mother)." In 2011, the Town notified the plaintiffs
that they were in violation of the zoning code because they
were renting out the second dwelling, which was not permitted
by the certificate of occupancy. In 2013, the plaintiffs
applied to the Town's Office of Building, Zoning and
Planning Administration and Enforcement (hereinafter the
Zoning Board) for a "corrected" certificate of
occupancy, arguing that they had been granted unrestricted
residential use of the second dwelling, even though that was
not reflected in the certificate of occupancy. The Zoning
Board denied the plaintiffs' request, and on May 21,
2014, the ZBA denied the plaintiffs' appeal of that
decision. The plaintiffs did not challenge the ZBA's
decision by means of a CPLR article 78 proceeding.
December 2014, the plaintiffs commenced the instant action
against the Town asserting five causes of action. The first
cause of action alleged that the Town violated 42 USC §
1983 by denying them an unrestricted certificate of occupancy
for the second dwelling. The second cause of action alleged
that the Town violated the plaintiffs' rights under the
Fourth Amendment of the United States Constitution by
effectively seizing the second dwelling. The third and fourth
causes of action alleged that the Town violated the
plaintiffs' rights under the Fifth Amendment of the
United States Constitution by, in effect, unlawfully taking
the second dwelling without the payment of just compensation.
The fifth cause of action alleged that the plaintiffs were
entitled to a declaratory judgment, inter alia, ordering the
Town to issue a corrected certificate of occupancy. The Town
moved pursuant to CPLR 3211(a)(5) to dismiss the complaint,
arguing that the causes of action were barred by the statute
of limitations. The Supreme Court granted the Town's
motion, and the plaintiffs appeal.
Supreme Court properly directed the dismissal of the four
causes of action alleging that the Town committed federal
civil rights violations by restricting the plaintiffs'
use of the second dwelling. These causes of action were each
governed by a three-year statute of limitations (see
CPLR 214, ; Owens v Okure, 488 U.S. 235, 240,
251; Mallard v Potenza, 376 Fed.Appx. 132, 133 [2d
Cir]; Corsello v Verizon N.Y., Inc., 77 A.D.3d 344,
361, mod on other grounds 18 N.Y.3d 777). The
statute of limitations started to run on each cause of action
when the certificate of occupancy was issued to the
plaintiffs in 1987 (see Mallard v Potenza, 376
Fed.Appx. at 133; Ognibene v Niagara County Sheriff's
Dept., 117 Fed.Appx. 798, 799 [2d Cir.]; Bobrowsky v
Curran, 333 F.Supp.2d 159, 164 [US Dist Ct, S.D. NY];
Matter of City of New York [South Richmond Bluebelt,
Phase 3-594 Assoc., Inc.], 141 A.D.3d 672, 674). Since
the plaintiffs did not commence this action until 2014, the
causes of action were time-barred.
to the plaintiffs' contention, the continuous wrong
doctrine is not applicable to any of their causes of action
alleging violations of federal law (see Town of Oyster
Bay v Lizza Indus., Inc., 22 N.Y.3d 1024, 1031-1032;
Henry v Bank of Am., 147 A.D.3d 599, 601; Rural
Community Coalition, Inc. v Village of Bloomingburg, 127
A.D.3d 1304, 1305).
Supreme Court also properly directed the dismissal of the
fifth cause of action, which sought declaratory relief, as
barred by the statute of limitations. " [W]hen [a]
proceeding has been commenced in the form of a declaratory
judgment action, for which no specific statute of limitations
is prescribed, it is necessary to examine the substance of
that action to identify the relationship out of which the
claim arises and the relief sought in order to resolve which
statute of limitations is applicable'" (Matter
of Greens at Half Hollow, LLC v Suffolk County Dept. of Pub.
Works, 147 A.D.3d 942, 943, quoting New York City
Health & Hosps. Corp. v McBarnette, 84 N.Y.2d 194,
200-201). Here, despite being couched in declaratory judgment
language, the relief sought in this cause of action would
have been available to the plaintiffs by challenging the
ZBA's 2014 decision to uphold the denial of their request
for a corrected certificate of occupancy, and thus, the
30-day statute of ...