Opinion
14843, 100828/13
04-16-2015
In re Ricardo JAVIER, Petitioner–Appellant, v. The NEW YORK CITY DEPARTMENT OF BUILDINGS, Respondent–Respondent.
Casella & Casella, LLP, Staten Island (Ralph P. Casella of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
Casella & Casella, LLP, Staten Island (Ralph P. Casella of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
ACOSTA, J.P., SAXE, MOSKOWITZ, RICHTER, FEINMAN, JJ.
Opinion Order, Supreme Court, New York County (Margaret A. Chan, J.), entered September 6, 2013, which denied the petition brought pursuant to CPLR article 78, seeking to vacate respondent's determination, dated August 29, 2012, denying petitioner's application for a master plumber license, and dismissed the proceeding, unanimously affirmed, without costs.
An article 78 proceeding must be brought “within four months after the determination to be reviewed becomes final and binding upon the petitioner” (CPLR 217[1] ). Here the August 2, 2012 letter denying petitioner's application demonstrated that the agency had reached a definitive position and inflicted a concrete injury (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] ).
Petitioner asserts that the statute of limitations did not commence to run with the August 2012 letter because the injury could have been prevented or significantly ameliorated by further administrative action or steps available to him. However, the only action available to petitioner was a request for reconsideration within sixty days, and he failed to make such a request within that time period. In any event, even if the statute of limitations did not begin to run until the sixty-day period to request reconsideration expired (i.e., 60 days from August 29, 2012), petitioner's article 78 petition filed on June 7, 2013 is still untimely.
Respondent's April 2013 letter in response to petitioner's counsel's untimely correspondence seeking reconsideration did not extend the statute of limitations period (see Matter of Baloy v. Kelly, 92 A.D.3d 521, 522, 938 N.Y.S.2d 430 [1st Dept.2012] ).
We have considered petitioner's remaining arguments and find them unavailing.