SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

921 

CA 14-00091 

PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND WHALEN, JJ.

 

 

BRISTOL HOMEOWNERS ENVIRONMENTAL PRESERVATION 

ASSOCIATES, LLC, PLAINTIFF-APPELLANT,

V MEMORANDUM AND ORDER

TOWN OF SOUTH BRISTOL, TOWN OF SOUTH BRISTOL 

PLANNING BOARD, SOUTH BRISTOL RESORTS, LLC, 

BRISTOL HARBOUR DEVELOPMENT, LLC, CHRISANNTHA 

CONSTRUCTION, IVERSEN CONSTRUCTION AND 

CHRISTOPHER IVERSEN, DEFENDANTS-RESPONDENTS. 

 

FRANK A. ALOI, ROCHESTER, AND PHILIP ABRAMOWITZ, BUFFALO, FOR

PLAINTIFF-APPELLANT. 

LECLAIR KORONA GIORDANO COLE LLP, ROCHESTER (JEREMY M. SHER OF

COUNSEL), FOR DEFENDANTS-RESPONDENTS TOWN OF SOUTH BRISTOL AND TOWN OF

SOUTH BRISTOL PLANNING BOARD.

KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS SOUTH BRISTOL RESORTS, LLC, BRISTOL HARBOUR

DEVELOPMENT, LLC, CHRISANNTHA CONSTRUCTION, IVERSEN CONSTRUCTION AND

CHRISTOPHER IVERSEN. 

 

Appeal from an order and judgment (one paper) of the Supreme

Court, Ontario County (Frederick G. Reed, A.J.), entered October 29,

2013. The order and judgment granted the motions of defendants to

dismiss the complaint, dismissed the complaint and denied the cross

motion of plaintiff for a preliminary injunction. 

It is hereby ORDERED that the order and judgment so appealed from

is unanimously affirmed without costs. 

Memorandum: In 2005, defendant Town of South Bristol Planning

Board (Planning Board) issued a negative declaration of environmental

significance and site plan approval for a 24-unit townhouse

construction project. In 2009, as a result of the developer’s

conversion of the project to one involving condominiums, the Planning

Board issued a second negative declaration and site plan approval. On

October 19, 2012, the Planning Board approved a resubdivision of the

site from 24 individual lots to 2 lots. No CPLR article 78 challenge

was taken by plaintiff at any time with respect to any of the above

administrative actions. 

The Town of South Bristol Town Code (Code) includes a provision
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that site plan approval “will automatically terminate two years after

the same is granted unless significant work has commenced on the

project” (§ 170-94 [J]). At a regular meeting of the Planning Board

on December 19, 2012, the agenda included a discussion item concerning

the definition of “significant work” within the meaning of Code § 170-

94 (J). The Planning Board Chairman read into the record the written

opinion of the Town Code Enforcement Officer, i.e., that “significant

work” on a condominium project was not limited to actual physical

construction on the project site, but could include substantial

financial investment and effort spent in gaining state approval of the

condominium project. The Town Code Enforcement Officer further

determined that “significant work has commenced on the project.” No

CPLR article 78 challenge was taken by plaintiff with respect to that

determination. 

Plaintiff commenced this action on July 17, 2013 seeking a

declaration that, inter alia, the 2009 site plan approval had

automatically terminated because “significant work” had not been

timely commenced on the project. Defendants moved pursuant to, inter

alia, CPLR 3211 (a) (5) to dismiss the complaint on the ground that

all causes of action were time-barred. Plaintiff cross-moved pursuant

to CPLR article 63 for a preliminary injunction halting any

construction work or development of the site. Supreme Court granted

defendants’ motions and denied plaintiff’s cross motion. We affirm.

We reject plaintiff’s contention that the action was timely and

properly brought as a declaratory judgment action pursuant to CPLR

3001. Although a six-year limitations period governs declaratory

judgment actions (see CPLR 213 [1]), it is well settled that if such

claim could have been brought in another form, then the shorter

limitations period applies (see Solnick v Whalen, 49 NY2d 224, 229-

230). Here, Town Law § 274-a (11) provides for a 30-day limitations

period for challenging “a decision of the [planning] board or any

officer, department, board or bureau of the town” under CPLR article

78. Thus, plaintiff’s challenge to the Town Code Enforcement

Officer’s determination of the meaning of “significant work” under

Code § 170-94 (J) could have been brought in a CPLR article 78

proceeding under Town Law § 274-a (11). Assuming arguendo, as

plaintiff contends, that no administrative appeal from such

determination was required or available, the action was not commenced

within the 30-day limitations period set forth in section 274-a (11),

and the court therefore properly granted defendants’ motions to

dismiss on that ground (see Kreamer v Town of Oxford, 91 AD3d 1157,

1158-1159). Likewise, any challenge to the 2005, 2009 or 2012

Planning Board’s actions could have been brought in a CPLR article 78

proceeding, and thus the instant action, even though denominated as

one for a declaratory judgment, also was not timely commenced within

the 30-day limitations period applicable to each such action of the

Planning Board (see Town Law § 274-a [11]; see also Town Law §§ 267-c

[1]; 282). 

We reject plaintiff’s further contention that, with respect to

the Town Code Enforcement Officer’s determination, there was no

administrative action and thus “nothing to appeal.” Contrary to
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CA 14-00091 

plaintiff’s contention, Code § 170-92 (B) specifically provides for an

appeal to the Zoning Board of Appeals where it is alleged that there

is an error in any order or decision made by an administrative officer

or body in the enforcement of the Code (see generally Matter of

Mamaroneck Beach & Yacht Club, Inc. v Fraioli, 24 AD3d 669, 670). 

Thus, plaintiff failed to pursue the available administrative appeal

(see Matter of Charest v Morrison, 48 AD3d 1178, 1179), and the 30-day

period of limitations applicable to judicial review therefrom cannot

be circumvented by “the simple expedient of denominating the action

one for declaratory relief” (Matter of Cullinan v Ahern, 212 AD2d 103,

105).

We have considered plaintiff’s remaining contentions and conclude

that they are without merit.

Entered: November 14, 2014 Frances E. Cafarell

Clerk of the Court