Shahid v. City of N.Y.

144 A.D.3d 1163

43 N.Y.S.3d 393

2016 N.Y. Slip Op. 08081

In the Matter of Abdus SHAHID, appellant,

v.CITY OF NEW YORK, respondent.

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

Nov. 30, 2016.

Abdus Shahid, Brooklyn, NY, appellant pro se.

Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Elizabeth S. Natrella of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, and HECTOR D. LaSALLE, JJ.

In a proceeding pursuant to CPLR article 78 to vacate and set aside liens imposed by the respondent upon real property owned by the petitioner for unpaid emergency repairs, the petitioner appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Ash, J.), dated September 22, 2014, as, in effect, upon reargument, adhered to the determination in an order and judgment (one paper) of the same court dated May 4, 2014, inter alia, dismissing the proceeding.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In May 2011, the petitioner commenced this proceeding pursuant to CPLR article 78 to vacate and set aside liens imposed by the respondent, the City of New York, upon real property owned by the petitioner for unpaid emergency repairs. The City moved, inter alia, to dismiss the petition for failure to exhaust administrative remedies. The Supreme Court initially granted that branch of the City's motion, but subsequently, upon granting the petitioner leave to reargue, vacated the prior determination, and, thereupon, denied it. In an order and judgment (one paper) dated May 4, 2014, the court granted the City leave to reargue and, upon reargument, vacated its prior determination, and, thereupon, granted that branch of the City's motion which was to dismiss the petition for failure to exhaust administrative remedies, and dismissed the proceeding.

Thereafter, the petitioner again moved for leave to reargue. In the order appealed from, dated September 22, 2014, the Supreme Court reexamined the parties' contentions and concluded that its determination in the order and judgment dated May 4, 2014, was not erroneous. In effect, the court granted reargument and adhered to its prior determination in the May 2014 order and judgment (see Castle Oil Corp. v. ACE Am. Ins. Co., 137 A.D.3d 833, 836, 26 N.Y.S.3d 783 ; NYCTL 1998–2 Trust v. Michael Holdings, Inc., 77 A.D.3d 805, 806, 910 N.Y.S.2d 469 ).

Initially, the petitioner contends that the Supreme Court erred in adhering to its prior determination granting the City leave to reargue because that branch of the City's motion which was for leave to reargue was untimely under CPLR 2221(d)(3). This contention is without merit. Where, as here, the prior order was never served with notice of entry, "the thirty-day period set forth in CPLR 2221(d)(3) has not been triggered" (Churchill v. Malek, 84 A.D.3d 446, 446, 922 N.Y.S.2d 341 ).

Moreover, the Supreme Court properly adhered to its prior determination granting that branch of the City's motion which was to dismiss the petition for failure to exhaust administrative remedies, and dismissing the proceeding. "As a general rule, ‘one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law’ " (Matter of Keener v. City of Middletown, 115 A.D.3d 859, 860, 982 N.Y.S.2d 325, quoting Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560 ; see Matter of LaRocca v. Department of Planning, Envt. & Dev. of Town of...