        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1049
CA 11-00471
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND GREEN, JJ.


GREECE TOWN MALL, LP,
PLAINTIFF-PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DENNIS M. MULLEN, COMMISSIONER, NEW YORK
STATE DEPARTMENT OF ECONOMIC DEVELOPMENT,
DEFENDANT-RESPONDENT-RESPONDENT.


FEERICK LYNCH MACCARTNEY PLLC, SOUTH NYACK (DENNIS E.A. LYNCH OF
COUNSEL), FOR PLAINTIFF-PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF
COUNSEL), FOR DEFENDANT-RESPONDENT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (David
Michael Barry, J.), entered September 2, 2010 in a declaratory
judgment action and CPLR article 78 proceeding. The judgment granted
the motion of defendant-respondent to dismiss the complaint/petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by denying the motion in part,
reinstating the first cause of action and severing that cause of
action, and as modified the judgment is affirmed without costs.

     Memorandum: Plaintiff-petitioner (plaintiff) commenced this
hybrid declaratory judgment action/CPLR article 78 proceeding seeking,
inter alia, to annul the determination decertifying plaintiff as an
“Empire Zone” business pursuant to the Empire Zones Act (General
Municipal Law § 955 et seq.). We conclude at the outset that
plaintiff correctly concedes that the third and fourth causes of
action seek relief pursuant to CPLR article 78, and we further
conclude that the second and fifth causes of action also seek such
relief. Those causes of action constitute challenges to the specific
action of an administrative agency (see Matter of Aubin v State of New
York, 282 AD2d 919, 921-922, lv denied 97 NY2d 606; see also Matter of
Peckham Materials Corp. v Westchester County, 303 AD2d 511, 511-512;
Federation of Mental Health Ctrs. v DeBuono, 275 AD2d 557, 558-560).
Consequently, only the first cause of action properly seeks a
declaration inasmuch as plaintiff thereby challenges certain
regulations promulgated by defendant-respondent (defendant) as
inconsistent with General Municipal Law § 959, rather than a
particular agency determination or procedure (see Matter of Highland
Hall Apts., LLC v New York State Div. of Hous. & Community Renewal, 66
                                 -2-                          1049
                                                         CA 11-00471

AD3d 678, 681).

     We reject the contention of plaintiff that Supreme Court erred in
granting that part of defendant’s motion to dismiss the CPLR article
78 proceeding, i.e., the second through fifth causes of action. “[A]
proceeding under [CPLR article 78] shall not be used to challenge a
determination . . . [that] is not final or can be adequately reviewed
by appeal to a court or to some other body or officer” (CPLR 7801
[1]). “In order to determine whether an agency determination is
final, a two-part test is applied. ‘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’ ” (Matter of
County of Niagara v Daines, 79 AD3d 1702, 1704, lv denied 17 NY3d 703,
quoting Matter of Best Payphones, Inc. v Department of Info. Tech. &
Telecom. of City of N.Y., 5 NY3d 30, 34, rearg denied 5 NY3d 824; see
Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, 194-
195; Stop-The-Barge v Cahill, 1 NY3d 218, 223).

     Here, plaintiff challenges defendant’s determination rendered
June 29, 2009, but the injury inherent in that determination could
have been ameliorated by further administrative action through an
appeal to the Empire Zone Designation Board (hereafter, EZDB)
(see General Municipal Law § 959 [w]; 5 NYCRR 14.2). Indeed,
plaintiff challenged defendant’s determination in an administrative
appeal to the EZDB, and the EZDB subsequently ruled on that appeal.
Consequently, the determination challenged by plaintiff is nonfinal
(see generally Best Payphones, Inc., 5 NY3d at 34; County of Niagara,
79 AD3d at 1704), and the court properly dismissed the CPLR article 78
proceeding (see CPLR 7801 [1]).

     We further conclude, however, that the court erred in granting
that part of the motion to dismiss the declaratory judgment action,
i.e., the first cause of action. That cause of action is governed by
the six-year statute of limitations pursuant to CPLR 213 (1) (see
Solnick v Whalen, 49 NY2d 224, 229-230), and thus the court erred to
the extent that it concluded that the first cause of action is time-
barred. We therefore modify the judgment by denying that part of the
motion to dismiss the declaratory judgment action, and the first cause
of action is reinstated and severed (see generally Matter of Coalition
to Save Cedar Hill v Planning Bd. of Inc. Vil. of Port Jefferson, 51
AD3d 666, 668, lv denied 11 NY3d 702).




Entered:   September 30, 2011                  Patricia L. Morgan
                                               Clerk of the Court
