Smith v. State

201 A.D.3d 1225

162 N.Y.S.3d 499

Lori SMITH, Appellant,

v.STATE of New York et al., Respondents.

531841

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

Calendar Date: December 15, 2021

Decided and Entered: January 20, 2022

Government Justice Center, Inc., Albany (Cameron J. Macdonald of counsel), for appellant.

Letitia James, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondents.

Before: Egan Jr., J.P., Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from an order of the Supreme Court (Ferreira, J.), entered June 15, 2020 in Albany County, which granted defendants’ motion to dismiss the complaint.

Plaintiff is a certified equine sports massage therapist. She is not, however, a licensed veterinarian or veterinary technician, nor is she licensed to provide human massage therapy. Following certification in July 2017 by a private New Jersey company, plaintiff returned to New York and endeavored to establish her own business providing equine massage therapy, with the business name "Five Feathers Equine Massage." In June 2018, plaintiff was contacted by phone by the Education Department's Office of Professional Discipline (hereinafter OPD) and informed by a senior investigator that her use of the word "massage" in the title of her business and her offering equine massage services may be in violation of the Education Law. OPD sent plaintiff a follow-up letter dated July 11, 2018, in which OPD enclosed a compliance agreement for plaintiff to sign and return, detailing the laws that plaintiff could be violating and containing a clause affirming her agreement to cease all actions violating those laws. Following the interaction with OPD, plaintiff took down her website and discontinued offering equine massage therapy; however, she did not sign or return the letter of compliance.

Plaintiff commenced this action on June 25, 2019 alleging that the interpretation of state laws that allow only licensed veterinarians or veterinary technicians to practice animal care, coupled with laws that define massage therapy as only that which is practiced on humans, results in "absurd, arbitrary ... and inconsistent results." She further claimed that, because of this interpretation, animal massage is considered a part of veterinary medicine when it is more akin to routine animal care, which results in its criminalization when carried out by someone unlicensed in veterinary medicine. Plaintiff sought declaratory relief, citing due process and equal protection violations under both the N.Y. and U.S. Constitutions, as well as a violation of the Privileges or Immunities Clause of the U.S. Constitution. Defendants filed a pre-answer motion to dismiss the complaint stating, as relevant herein, that the claim was time-barred under the four-month statute of limitations period in which an administrative decision can be challenged under CPLR article 78. Plaintiff opposed defendants’ motion and, following oral argument, Supreme Court found that plaintiff's challenge should have been commenced in a CPLR article 78 proceeding within four months of the July 2018 letter, which the court found to be a final and binding determination. Supreme Court held that the complaint was therefore time-barred and granted defendants’ motion to dismiss. Plaintiff appeals.

Plaintiff contends that her constitutional challenges were to the state's veterinary laws and that a declaratory judgment action, rather than a CPLR article 78 proceeding, is the proper recourse. Thus, she claims, Supreme Court erred in not applying the statute of limitations as to declaratory judgments, under which her action would not be time-barred. "Although declaratory judgment actions are typically governed by a six-year statute of limitations, if the underlying dispute could have been resolved through an action or proceeding for which a specific, shorter limitations period governs, then such shorter period must be applied. This inquiry into the true nature of the dispute – and the time limitation applicable thereto – requires the court to examine the substance of that action to identify the relationship out of which the claim arises and the relief sought" ( Doyle v. Goodnow Flow Assn., Inc., 193 A.D.3d 1309, 1310, 147 N.Y.S.3d 728 [2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 911, 2021 WL 4735328 [2021] ; see Thrun v. Cuomo, 112 A.D.3d 1038, 1040, 976 N.Y.S.2d 320 [2013], lv denied 22 N.Y.3d 865, 2014 WL 1316287 [2014] ). "Where ... the challenge brought is to a quasi-legislative act or decision made by an administrative agency, it is well settled that the proper vehicle for such review is a CPLR article 78 proceeding and the four-month statute of limitations applies" ( Matter of Capital Dist. Regional Off–Track Betting Corp. v. New York State Racing & Wagering Bd., 97 A.D.3d 1044, 1045, 949 N.Y.S.2d 523 [2012] [citations omitted]; see Matter of Town of Stony Point v. State of N.Y. Dept. of Fin., Off. of Real Prop. Servs., 107 A.D.3d 1217, 1218, 967 N.Y.S.2d 231 [2013] ).

Here, Supreme Court properly determined that plaintiff's claim is borne out of her interaction with OPD and, as such, should have been commenced in a CPLR article 78 proceeding. The record supports the court's finding that plaintiff's main contention is not that the Education Law is unconstitutional, but rather is centered around OPD's application of the law to her equine massage practice in particular, which stems from her correspondences with OPD in June and July 2018. The court noted – and plaintiff also acknowledged in her opposing papers – that the Education Law does not reference the practice of massage as related to veterinary practice, further bolstering its finding that plaintiff's challenge is to the administrative application of the law and not the law itself. Though plaintiff presents her claims as constitutional challenges, at their essence they derive from OPD's application of the laws and its communications with plaintiff of their interpretations (see Doyle v. Goodnow Flow Assn., Inc., 193 A.D.3d at 1312, 147 N.Y.S.3d 728 ; Spinney at Pond View, LLC v. Town Bd. of the Town of Schodack, 99 A.D.3d 1088, 1089, 953 N.Y.S.2d 314 [2012] ). Therefore, Supreme Court correctly concluded that the matter was governed by a four-month statute of limitations.

Further, although a close question, we do not find that Supreme Court erred in determining that the July 2018 letter with the proposed compliance agreement was a final and binding decision, thus commencing the statute of limitations. As relevant here, "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] ). The two requirements for determining finality in this context are "the agency must have arrived at a definite position on the issue inflicting actual injury, and the injury may not be significantly ameliorated either by further administrative action or steps taken by the complaining party" ( Matter of Comptroller of City of N.Y. v. Mayor of City of N.Y., 7 N.Y.3d 256, 262, 819 N.Y.S.2d 672, 852 N.E.2d 1144 [2006] ; see Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecom. of City of N.Y., 5 N.Y.3d 30, 34, 799 N.Y.S.2d 182, 832 N.E.2d 38 [2005] ). This rule, however, "is easier stated than applied" ( Matter of Essex County v. Zagata, 91 N.Y.2d 447, 453, 672 N.Y.S.2d 281, 695 N.E.2d 232 [1998] ; see Walton v. New York State Dept. of Correctional Servs., 8 N.Y.3d 186, 197, 831 N.Y.S.2d 749, 863 N.E.2d 1001 [2007, Smith, J., concurring] ). "The policy underlying the short time frame recognizes...