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

940
CA 15-00411
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF BRIARWOOD MANOR PROPERTY LLC,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

COUNTY OF NIAGARA AND MOUNT VIEW PROPERTIES
OF LOCKPORT LLC, RESPONDENTS-RESPONDENTS.


ZDARSKY, SAWICKI & AGOSTINELLI LLP, BUFFALO (GERALD T. WALSH OF
COUNSEL), FOR PETITIONER-APPELLANT.

CLAUDE A. JOERG, COUNTY ATTORNEY, LOCKPORT, FOR RESPONDENT-RESPONDENT
COUNTY OF NIAGARA.

WOODS OVIATT GILMAN LLP, ROCHESTER (BRIAN D. GWITT OF COUNSEL), FOR
RESPONDENT-RESPONDENT MOUNT VIEW PROPERTIES OF LOCKPORT LLC.


     Appeal from a judgment (denominated amended order) of the Supreme
Court, Niagara County (Ralph A. Boniello, III, J.), entered May 21,
2014 in a proceeding pursuant to CPLR article 78. The judgment
dismissed the proceeding as time-barred.

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

     Memorandum: This appeal involves the sale and conveyance of a
former skilled nursing facility (property) by respondent County of
Niagara (County) to respondent Mount View Properties of Lockport LLC
(Mount View). Petitioner sought to challenge the transaction on the
ground that the County failed to comply with provisions of County Law
§ 215 requiring the sale or lease of such property only to the highest
responsible bidder after public advertisement. Petitioner commenced
this lawsuit by summons and verified complaint filed January 17, 2014,
seeking a declaratory judgment or, in the alternative, a judgment
pursuant to CPLR article 78 determining the transaction to be
unlawful, voiding the transaction, and directing that respondents
perform various actions consistent with that relief. Inasmuch as
petitioner’s challenge was directed at the legislative procedures by
which the transaction was effectuated rather than the substance of the
County’s action, Supreme Court, inter alia, “convert[ed]” the
declaratory judgment action into a CPLR article 78 proceeding, which
is subject to the four-month statute of limitations set forth in CPLR
217 (see CPLR 103 [c]; Matter of Save the Pine Bush v City of Albany,
70 NY2d 193, 203; P & N Tiffany Props., Inc. v Village of Tuckahoe, 33
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                                                         CA 15-00411

AD3d 61, 63-66, appeal dismissed 8 NY3d 943). In light of the papers
submitted in support of and in opposition to respondents’ motions to
dismiss, the court concluded that the parties were deliberately
charting a summary judgment course and therefore deemed the motions as
ones for summary judgment (see Nowacki v Becker, 71 AD3d 1496, 1497).
The court then granted respondents’ motions on the ground that the
proceeding was time-barred pursuant to CPLR 217 (1). We affirm.

     The County operated the subject property as a skilled nursing
facility until 2008, when it was closed following the recommendation
of a state commission that the County’s certificate for operation be
rescinded or revoked and that the facility be transitioned to the
operation of a regional assisted living program. The County
Legislature unanimously adopted resolutions declaring that the
property be sold or leased. Despite 1½ years of advertising and
marketing by a realtor, however, no purchase offers were received for
the property. In August 2011, the County retained a different realtor
to advertise and market the property. Subsequently, David Tosetto, on
behalf of an entity that would eventually become Mount View, submitted
an offer to purchase the property for $555,000. On July 11, 2012, the
County Legislature unanimously adopted a resolution approving the sale
based on Tosetto’s offer and authorizing the Chairman of the County
Legislature to execute a sales contract. The resolution stated that
the County had negotiated in good faith with Tosetto “on behalf of an
entity to be formed . . . for purposes of the sale of such buildings
and grounds.” The resolution further stated that the purchase was
contingent upon state approval of the buyer’s application to operate
an assisted living program, as well as completion by the buyer of a
due diligence inspection period during which the terms of the contract
could be further negotiated. In addition, the resolution provided
that, upon the County obtaining price quotes for asbestos abatement,
either party could terminate the agreement within a specified period
if all such price quotes exceeded a certain cost. Thereafter, the
County and Tosetto, acting on behalf of an entity to be formed for
purposes of the transaction, i.e., Mount View, executed a purchase
agreement. On July 31, 2013, the Administration Committee of the
County Legislature voted unanimously to support a resolution reducing
the sale price of the property to $196,000 to reflect some of the
costs associated with asbestos abatement and the handling of two
underground storage tanks on the property. Petitioner, a developer
and owner of another health care facility, objected on the ground that
reducing the sale price would constitute an unlawful formation of a
new contract without first making the property available through a
public bidding process. Petitioner further stated that, subject to a
review and investigation, it would be willing to pay the County at
least $300,000 for the property. The County Legislature subsequently
withdrew its proposed resolution to reduce the sale price.
Notwithstanding petitioner’s further assertions that the property
should be subject to public advertisement with bids taken to determine
the highest responsible bidder, the County completed the sale and
conveyance of the property to Mount View on September 18, 2013, for
$550,000.

     Initially, we reject petitioner’s contention that the court erred
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                                                         CA 15-00411

in denying its cross motion for a default judgment inasmuch as
respondents did not default but filed timely motions to dismiss in
lieu of answering (see CPLR 7804 [c], [f]). We further conclude that
the court properly dismissed the proceeding as time-barred. Contrary
to petitioner’s contention, “the limitations period ‘was triggered on
. . . the date on which the [County Legislature] adopted the
resolution’ [approving] the sale” (Riverview Dev. LLC v City of
Oswego, 125 AD3d 1417, 1418; see Matter of Long Is. Pine Barrens
Socy., Inc. v County of Suffolk, 55 AD3d 610, 612; Matter of Gach v
City of Long Beach, 218 AD2d 801, 801). “The ‘determination to be
reviewed’ became final and binding on [petitioner] on [July 11, 2012]
when the resolution went into effect” (Riverview Dev. LLC, 125 AD3d at
1418, 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). “It was at that juncture that the [County] ‘reached a
definitive position . . . that inflict[ed] actual, concrete injury
. . . [that could not] be prevented or significantly ameliorated by
further administrative action or by steps available to the complaining
part[y]’ ” (Riverview Dev. LLC, 125 AD3d at 1419; see Best Payphones,
Inc., 5 NY3d at 34; Long Is. Pine Barrens Socy., Inc., 55 AD3d at 612;
Gach, 218 AD2d at 801-802).

     Contrary to petitioner’s further contention, we conclude that the
contingent events and minor modifications in the terms of the contract
did not detract from the finality of the resolution, which “clearly
committ[ed] the County to a definite course of future action” (Matter
of Price v County of Westchester, 225 AD2d 217, 220; see Matter of
Young v Board of Trustees of Vil. of Blasdell, 221 AD2d 975, 977, affd
89 NY2d 846; Matter of Sierra Club v Power Auth. of State of N.Y., 203
AD2d 15, 16-17). Unlike the cases relied upon by petitioner, there
was no ambiguity here to render the impact of the resolution on
petitioner as anything other than final and binding (cf. Matter of
Jewish Mem. Hosp. v Whalen, 47 NY2d 331, 333; Berkshire Nursing Ctr.,
Inc. v Novello, 13 AD3d 327, 328; Sutton v Yates County, 193 AD2d
1126, 1126, lv denied 82 NY2d 656). Further, the proposed resolution
to reduce the sales price is inconsequential inasmuch as the proposal
was withdrawn and never enacted (see generally Matter of Cabrini Med.
Ctr. v Axelrod, 107 AD2d 965, 966-967), and it is irrelevant that
Mount View, rather than Tosetto, was the eventual purchaser because
the resolution expressly authorized the sale to an entity to be formed
for the purpose of completing the transaction.

     We thus conclude that the four-month statute of limitations
period began to run when the County Legislature adopted the resolution
on July 11, 2012, and inasmuch as petitioner commenced this proceeding
on January 17, 2014, the court properly dismissed the proceeding as
time-barred.




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
