Matter of Orange County Economic Development Corporation v. State of New York Authorities Budget Office

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 21, 2015 519623
________________________________

In the Matter of ORANGE COUNTY
ECONOMIC DEVELOPMENT
CORPORATION, Doing Business
as ORANGE COUNTY
PARTNERSHIP,
Appellant,
v MEMORANDUM AND ORDER

STATE OF NEW YORK AUTHORITIES
BUDGET OFFICE,
Respondent.
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Calendar Date: March 26, 2015

Before: Peters, P.J., Lahtinen, Rose and Devine, JJ.

__________

Burke, Miele & Golden, LLP, Goshen (Richard B. Golden of
counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Kate H.
Nepveu of counsel), for respondent.

__________

Rose, J.

Appeal from a judgment of the Supreme Court (Platkin, J.),
entered March 4, 2014 in Albany County, which, in a proceeding
pursuant to CPLR article 78, granted respondent's motion to
dismiss the petition.

Petitioner, a not-for-profit local economic development
corporation, was informed by a November 2011 letter from
respondent that it considered petitioner to be a local authority
subject to the reporting, disclosure and governance requirements
 -2- 519623

of the Public Authorities Law, and that the lack of any response
from petitioner by December 6, 2011 would indicate petitioner's
acceptance of the determination. Petitioner did not respond to
the letter until January 2012 and, in the months that followed,
petitioner and respondent exchanged letters regarding
petitioner's disagreement with the determination and request that
it be reconsidered. Respondent replied that it continued to
consider petitioner to be a covered local authority and, in July
2013, publicly listed petitioner as noncompliant. Petitioner
then commenced this proceeding in November 2013 challenging
respondent's determination, and Supreme Court granted
respondent's pre-answer motion to dismiss on the ground that the
proceeding was untimely. Petitioner appeals.

Petitioner's contention that the proceeding is not subject
to a four-month statute of limitations because respondent acted
in excess of its jurisdiction is unpersuasive. Respondent is
authorized to ensure that "local authorities" comply with the
reporting requirements of the Public Authorities Law (see Public
Authorities Law §§ 2 [2]; 6), and petitioner's claim that
respondent's determination is in conflict with the relevant
statutory language is "reviewable in a CPLR article 78
proceeding, subject to a four-month statute of limitations"
(Fulton County Economic Dev. Corp. v New York State Auths. Budget
Off., 100 AD3d 1335, 1336 [2012]). Further, we agree with
Supreme Court that the determination here was final and binding
on December 6, 2011. Respondent's November 2011 letter left no
doubt that it had reached a definitive position regarding
petitioner's status. The fact that petitioner was not on the two
public lists of noncompliant entities issued by respondent
between December 2011 and July 2013 changed neither respondent's
determination nor petitioner's obligation to comply with the
Public Authorities Law, and respondent's acknowledgment of its
authority to reconsider did not render its determination nonfinal
or extend the statute of limitations (see Matter of Lubin v Board
of Educ. of City of N.Y., 60 NY2d 974, 976 [1983], cert denied
469 US 823 [1984]; Fulton County Economic Dev. Corp. v New York
State Auths. Budget Off., 100 AD3d at 1336; Matter of Hogg-
Chapman v New York State Teachers' Retirement Sys., 83 AD3d 1261,
1262 [2011]). Petitioner's remaining contentions have been
considered and found to be without merit.
 -3- 519623

Peters, P.J., Lahtinen and Devine, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger
Clerk of the Court