J. Hungerford Smith Co. v. Ingraham

Per Curiam. The Commissioner of Health appeals from an order of ¡Special Term which denied his motion to dismiss the petition as untimely. (See CPLR 217; art. 78; Public Health Law, § 1244, subds. 1, 2.) On May 6, 1966 respondent and the Village of Victor were directed to answer charges that they were discharging inadequately treated sewage and industrial wastes into Great Brook, Ontario County, in contravention of standards promulgated under article 12 of the Public Health Law. Following a hearing, the appellant on January 26, 1967 made an order, pursuant to section 1223 of the Public Health Law, directing respondent to cease and desist all discharges of industrial wastes on February 1, 1967 unless it should undertake certain actions and activities designed eventually to effect a more adequate treatment of discharges and industrial wastes from respondent’s plant on or before October 1,1967. Thereafter, on January 19,1968 respondent commenced this proceeding under CPLR article 78 to review and annul the Commissioner’s order, alleging that section 1220 and subdivision 3 of section 1242 of the Public Health Law were unconstitutional, that it was the victim of discriminatory enforcement, and that the order was arbitrary, capricious, unreasonable, and failed to contain adequate standards capable of being performed. While this proceeding was commenced almost one year after service of the order on January 26,1967, Special Term found that the order did not become final and binding, and thus subject to judicial review, until October 1, 1967, the last specified deadline for compliance contained in the order and that accordingly since the proceeding was commenced within four months of October 1, 1967, it was timely pursuant to subdivision 2 of section 1244 of the Public Health Law. The general Statute of Limitations applicable to article 78 proceedings is found in CPLR 217 providing for a basic four-month limitation period in respect to relief in the nature of certiorari or mandamus — the period beginning when ‘ ‘ the determination to be reviewed becomes final and binding ’ ’ when a determination is sought to be reviewed and ‘ ‘ after the respondent’s refusal * * # to perform its duty ’ ’ where it is sought to compel an officer to perform his duty (Matter of Foy v. Brennan, 285 App. Div. 669, 672-673). However, by the opening proviso of CPLR 217, this four-month period is not applicable if ‘ ‘ a shorter time is provided in the law authorizing the proceed [190] ing ” (Matter of City Council of City of Saratoga Springs v. Town Bd. of Town of Greenfield, 29 A D 2d 167). Subdivision 1 of section 1244 of the Public Health Law, a part of article 12 entitled “ Water Pollution Control”, requires the dismissal of this proceeding insofar as it provides that all orders or determinations of the Commissioner shall be subject to review as provided in article 78 of the CPLE and that “ application for such review must be made within sixty days after service * * * of the determination, or decision ”. (Cf. Matter of City of Rochester v. Ingraham, 52 Misc 2d 814.) Petitioner urges that subdivision 2 of said section 1244, providing for a four-month period ‘ ‘ after the finding, determination, decision or order sought to be reviewed becomes final and binding ’controls; but said subdivision is not pertinent here because of subdivision 1 and since, by its own terms, it applies only to special proceedings therein authorized ‘1 where a review as provided by article seventy-eight of the civil practice law and rules is not maintainable, either because the person aggrieved was not a party to the original proceedings, or for any other reason ”. The determination sought to be reviewed herein is maintainable pursuant to article 78 of the CPLE. The order sought to be reviewed in this case became final and binding upon the petitioner on February 1, 1967 since that was the date by which the respondent had to cease and desist. The remaining dates were merely excuses for not so ceasing its pollution and would be relevant on the issue of timeliness only where the petitioner seeks a determination as to whether or not it has complied with such conditions and, in such an event, there would first be a further determination by the appellant as to compliance. In Matter of Village of Whitehall v. Ingraham (31 A D 2d 894) this court noted that the appellant has ‘ ‘ the right to make, modify or cancel orders.” Matter of Castaways Motel v. Schuyler (24 N Y 2d 120, 126) is not applicable as to timeliness in the present case, since in that case there was no formal determination involved and there was, at best, ambiguity as to when the adverse determination was made. The court might consider the constitutional issues alleged by respondent as requiring that this proceeding be treated as a declaratory judgment action. (See Matter of Lakeland Water Dist. v. Onondaga County Water Auth., 22 N Y 2d 644.) However, the constitutionality of article 12 of the Public Health Law has already been determined (Matter of City of Utica v. Water Pollution Control Bd., 5 N Y 2d 164), and the present petition fails to raise a substantial constitutional issue. [191] The order should be reversed, on the law and the facts, and the petition dismissed, with costs.