Boyd v. Hilton

213 A.D.3d 927

182 N.Y.S.3d 662 (Mem)

In the Matter of Alicia BOYD, et al., appellants,

v.Mia HILTON, etc., et al., respondents.

2019–13209

Index No. 3032/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—December 9, 2022

February 22, 2023

Alicia Boyd and LaShaun Ellis, Brooklyn, NY, appellants pro se.

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Deborah A. Brenner and Jamison Davies of counsel), for respondents.

ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent/defendant Brooklyn Community Board 9 to join as co-applicant in a certain rezoning application and denial by that respondent/defendant of the requests of the petitioners/plaintiffs to produce certain records pursuant to the Freedom of Information Law (Public Officers Law art 6), and action, among other things, for related declaratory relief, the petitioners/plaintiffs appeal from a judgment of the Supreme Court, Kings County (Dawn Jimenez–Salta, J.), dated September 10, 2019. The judgment denied the petition and dismissed the proceeding/action.

ORDERED that the judgment is affirmed, with costs.

The petitioners/plaintiffs (hereinafter the petitioners) commenced this hybrid proceeding pursuant to CPLR article 78 and action, inter alia, for declaratory relief, seeking, among other things, review of a determination of the respondent/defendant Brooklyn Community Board 9 (hereinafter CB9) to join as co-applicant in a certain rezoning application and CB9's denial of the petitioners’ requests to produce certain records pursuant to the Freedom of Information Law (Public Officers Law art 6; hereinafter FOIL). By judgment dated September 10, 2019, the Supreme Court denied the petition and dismissed the proceeding/action. The petitioners appeal.

"[A] proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner" ( CPLR 217[1] ). "A determination is ‘final and binding’ within the meaning of CPLR 217 when ‘the decisionmaker arrives at a definitive position on the issue that inflicts an actual, concrete injury’ " ( Matter of Town of Huntington v. County of Suffolk, 195 A.D.3d 851, 852, 145 N.Y.S.3d 841, quoting Stop–The–Barge v. Cahill, 1 N.Y.3d 218, 223, 771 N.Y.S.2d 40, 803 N.E.2d 361 [internal quotation marks omitted]). Here, so much of the petition/complaint filed in December 2018 as challenged CB9's determination to join as co-applicant in the rezoning application, which was made on November 22, 2016, was untimely (see Matter of Town of Huntington v....