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Tornheim v Fiala, 2016 NY Slip Op 00962 [136 AD3d 797]

February 10, 2016

Appellate Division, Second Department

[*1]

Yehuda Tornheim, Appellant,

v

Barbara J. Fiala, as Commissioner of the New York State Department of Motor Vehicles, Respondent.

Bijal M. Jani, Pearl River, NY, for plaintiff/petitioner-appellant.

Eric T. Schneiderman, Attorney General, New York, NY (Claude S. Platton and Mark H. Shawhan of counsel), for defendant/respondent-respondent.

In a hybrid action for a judgment declaring that the plaintiff/petitioner is entitled to a new restricted use driver license, and proceeding pursuant to CPLR article 78 to compel the defendant/respondent to issue such a license to the plaintiff/petitioner, the plaintiff/petitioner appeals from an order and judgment (one paper) of the Supreme Court, Rockland County (Alfieri, Jr., J.), dated January 7, 2015, which granted the defendant/respondent’s motion to dismiss the complaint/petition as time-barred and dismissed the action/proceeding.

Ordered that the order and judgment is affirmed, with costs.

The Supreme Court correctly determined that the four-month statute of limitations set forth in CPLR 217 (1) applies to this hybrid action/proceeding, since the relief sought in the declaratory judgment complaint is available in the context of the CPLR article 78 proceeding ( see Solnick v Whalen , 49 NY2d 224 [1980]; Matter of Sutherland v New York State Dept. of Envtl. Conservation , 122 AD3d 759 [2014]).

Moreover, contrary to the contention of the plaintiff/petitioner (hereinafter the plaintiff), the Supreme Court properly granted the motion of the defendant/respondent (hereinafter the defendant) to dismiss this matter as time-barred. The record demonstrates that on October 31, 2013, the defendant issued a final and binding determination finding the plaintiff ineligible to obtain a new restricted use driver license. The plaintiff did not commence the instant hybrid action/proceeding challenging the determination until August 18, 2014. Although the plaintiff submitted additional correspondence to the defendant requesting reconsideration, and the defendant issued a subsequent letter further explaining its position, these circumstances did not undermine the finality of the October 31, 2013 determination, or serve to extend or revive the limitations period ( see Matter of Lubin v Board of Educ. of City of N.Y. , 60 NY2d 974, 976 [1983]; Holliswood Care Ctr. v Whalen , 58 NY2d 1001, 1003 [1983]; Matter of De Milio v Borghard , 55 NY2d 216, 220 [1982]; Matter of Orange County Economic Dev. Corp. v State of N.Y. Auths. Budget Off. , 128 AD3d 1256 , 1257 [2015]).

The plaintiff’s remaining contentions either are without merit or need not be [*2] considered in light of our determination. Mastro, J.P., Austin, Maltese and Barros, JJ., concur..