                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: May 14, 2015                      519924
________________________________

In the Matter of EZ
   PROPERTIES, LLC,
                      Appellant,
     v                                      MEMORANDUM AND ORDER

CITY OF PLATTSBURGH et al.,
                    Respondents.
________________________________


Calendar Date:   March 25, 2015

Before:   Lahtinen, J.P., McCarthy, Garry and Lynch, JJ.

                             __________


      O'Connell & Aronowitz, PC, Plattsburgh (Benjamin S. Barry
of counsel), for appellant.

     John E. Clute, Plattsburgh, for respondents.

                             __________


Garry, J.

      Appeal from a judgment of the Supreme Court (Muller, J.),
entered December 31, 2013 in Clinton County, which, in a
proceeding pursuant to CPLR article 78, dismissed the petition.

      In 2011, petitioner applied to the Planning Board of
respondent City of Plattsburgh for site plan approval to develop
an apartment complex. The plans were approved with a stipulation
requiring the use of exterior brick veneer in a color that
matched neighboring buildings. In 2012, after revising the
construction plans, petitioner filed a new application for site
plan approval and submitted architectural drawings indicating
that the exterior would be "½ Brick Veneer Siding" and that the
veneer material would be "Boral Stone Products Cultured Stone
Brick Veneer 'Antique Red.'" In April 2012, the Planning Board
                               -2-                519924

issued a letter that conditionally approved the site plan and
specifically referenced the architectural drawings as part of the
approved plan.1

      Upon commencing construction, petitioner used an alternate
veneer material instead of the Boral Stone material. In August
2012, respondent Joseph McMahon – the City Building Inspector –
wrote to petitioner advising it to discontinue use of the
alternate material, and directing petitioner either to use the
specified material or obtain approval for a modification from the
Planning Board. Petitioner refused to comply and continued to
install the alternate material. In September 2012, a City
representative advised petitioner that the City considered the
requirement to use the Boral Stone material to be valid and
enforceable. Thereafter, in October 2012, the City informed
petitioner that a certificate of occupancy would not be issued
unless the Boral Stone was installed or petitioner posted
financial security. Petitioner posted the security, signed a
completion agreement and was issued a certificate of occupancy.

      In January 2013, petitioner commenced this CPLR article 78
proceeding challenging respondents' authority to require the
specified veneer and seeking, among other things, an order
directing the issuance of an unconditional certificate of
occupancy. Supreme Court dismissed the petition as time-barred
under CPLR 217 (1). Petitioner appeals.

      A proceeding pursuant to CPLR article 78 "must be commenced
within four months after the determination to be reviewed becomes
final and binding upon the petitioner" (CPLR 217 [1]; see Matter
of Thornton v Saugerties Cent. Sch. Dist., 121 AD3d 1253, 1254
[2014]). Supreme Court found the petition to be untimely because
it was not filed within four months after the Planning Board's
April 2012 approval of the site plan. Petitioner argues that the
court erred, as the proceeding was timely filed within four
months after the City refused to issue an unconditional
certificate of occupancy, and it is this determination that is at


     1
        The conditions imposed by the Planning Board were
unrelated to the exterior veneer.
                              -3-                519924

issue. However, "[a]n administrative determination is considered
final and binding when an agency has reached a definitive
position on the issue that inflicts actual, concrete injury and
administrative remedies have been exhausted" (Matter of Selective
Ins. Co. of Am. v State of N.Y. Workers' Compensation Bd., 102
AD3d 72, 76 [2012] [internal quotation marks and citation
omitted]). Here, six of the petition's eight causes of action –
although phrased as challenges to the City's failure to issue an
unconditional certificate of occupancy – are, in substance,
challenges to the validity and enforceability of the Planning
Board's requirement that the Boral Stone material be used.
Petitioner was aggrieved by this requirement when it was included
in the Planning Board's site plan approval in April 2012 and not,
as it contends, when petitioner's refusal to comply subsequently
led to the withholding of an unconditional certificate of
occupancy (see Matter of Loparco v Napierala, 96 AD3d 1213, 1214
[2012]; Matter of Save the Pine Bush v Town Bd. of Town of
Guilderland, 272 AD2d 689, 692 [2000]).

      We reject petitioner's contention that the site plan
approval was not final and binding because it was ambiguous in
that the drawings specified the use of both "½ Brick Veneer
Siding" and the Boral Stone material. Petitioner's
representative attended several Planning Board meetings in
February and March 2012 at which materials and colors for the
building exterior were discussed, and brought samples of various
siding materials. During these meetings, the representative
specifically advised the Planning Board that "¾ [inch] real
brick" would be used on the exterior, and obtained verbal
approval from Planning Board members for a particular sample of
this brick – apparently the Boral Stone material.2 After these
meetings, petitioner submitted the drawing – dated April 2, 2012
– in which the Boral Stone specification appears. The record
thus fails to support this argument.




    2
        The alternate material that was used is formulated in
panels and apparently constitutes "½ Brick Veneer Siding" but
does not constitute "¾ [inch] real brick."
                              -4-                519924

      The City's September 2012 letter indicated that no
determination had yet been made as to whether to withhold the
certificate of occupancy, but this did not constitute a de novo
review by the Planning Board, and did not result in a lack of
finality (see Matter of Boston Culinary Group, Inc. v New York
State Olympic Regional Dev. Auth., 18 AD3d 1103, 1104-1105
[2005], lv denied 5 NY3d 712 [2005]). Nor did this letter serve
to toll or extend the limitations period (see Matter of Pettus v
New York State Ins. Dept., 93 AD3d 1067, 1068 [2012], lv denied
19 NY3d 814 [2012]). Thus, we agree with Supreme Court that the
petition was not filed within four months after the site plan
approval became final and binding, and these causes of action
were untimely.3

      The remaining causes of action seek to compel the City
and/or McMahon to issue a certificate of occupancy and, thus,
sound in the nature of mandamus. Such a proceeding is timely
filed within four months after a party demands the performance of
a mandatory, ministerial act and the demand is refused (see
Matter of Vestal Teacher's Assn. v Vestal Cent. School Dist., 5
AD3d 922, 923 [2004]). Even if these two causes of action were
timely in that they were filed within four months after McMahon
and the City refused to issue the unconditional certificate of
occupancy, mandamus is applicable only "to compel the performance
of a ministerial, nondiscretionary act where there is a clear
legal right to the relief sought" (Matter of Savastano v Prevost,
66 NY2d 47, 50 [1985]) and may not be used "to compel an act in
respect to which the officer may exercise judgment or discretion"
(Matter of Crain Communications v Hughes, 74 NY2d 626, 628 [1989]
[internal quotation marks and citations omitted]; see Matter of
Posada v New York State Dept. of Health, 75 AD3d 880, 882 [2010],


    3
        One of these causes of action is captioned as seeking a
declaratory judgment but, in substance, raises the same
challenges as the other claims in the petition. As the claim
could have been brought in the same form as the other causes of
action pursuant to CPLR article 78, its denomination does not
alter the application of the limitations period (see New York
City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 201
[1994]).
                              -5-                  519924

lv denied 15 NY3d 712 [2010]). The Plattsburgh City Code grants
authority to the building inspector "to receive, review, and
approve or disapprove applications for . . . [c]ertificates of
[o]ccupancy" and provides that the inspector shall issue such a
certificate "upon compliance by an applicant with all provisions
of this chapter" (Plattsburgh City Code §§ 175-3 [b]; 270-50 [B]
[2]). The determination whether petitioner complied with the
approved site plans involves discretionary considerations beyond
the reach of a proceeding for relief in the nature of mandamus
(see Matter of Loparco v Napierala, 96 AD3d at 1214). As such,
these causes of action were properly dismissed.

     Lahtinen, J.P., McCarthy and Lynch, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
