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• Title: Matter Peckham Industries v. S. Bernard Ross
• Author : Supreme Court of New York
• Release Date : January 25, 1970
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 66 KB

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[34 A.D.2d 826 Page 826] On October 10, 1968 petitioner applied to appellants for a site plan approval to operate a quarry on a tract of land which
petitioner had been occupying as a lessee. After about 18 months of negotiations, meetings and a public hearing, and more
particularly on March 25, 1969, appellants wrote to petitioner that the site plan approval would be issued provided petitioner
would contractually agree with 16 specified conditions. Several meetings were thereafter held wherein some of these conditions
were modified. After these meetings and on May 22, 1969, petitioner wrote to appellants summarizing its contention that some
of the conditions were unreasonable and that appellants legally could not demand compliance therewith. Petitioner and appellants
met on May 29, 1969 to discuss the conditions which petitioner in its letter of May 22, 1969 had contended were improper.
At this meeting appellants determined that petitioner's conduct in refusing to comply with all the then demanded conditions
meant that petitioner "in effect is withdrawing its application". Petitioner disagreed with appellants' determination and
instituted this proceeding on June 28, 1969. Appellants moved to dismiss the proceeding on the ground that it had not been
instituted within the time limit prescribed by section 282 of the Town Law, namely, within 30 days after the determination
sought to be reviewed had been made. Petitioner contended the proceeding was timely, since it was to review appellants' determination
made at their meeting on May 29, 1969. By an intermediate order, Special Term denied appellants' motion (Matter of Peckham
Ind. v. Ross, 60 Misc. 2d 566). Thereafter, appellants served their answer and answering affidavit wherin they affirmatively
pleaded the 30-day limitation statute. Petitioner served its reply and replying affidavit claiming there was no merit to
this defense. The petition was granted. The sole contention asserted by appellants for reversal is that the proceeding is
barred by the 30-day limitation statute or, in any event, that they have created a triable issue in that connection. Irrespective
of the correctness of Special Term's ruling that it was not required to reconsider appellants' contention of the Statute of
Limitations because (1) in its intermediate order it had overruled this contention and (2) appellants had not been given leave
to plead such defense in their answer to the petition, we find the defense is legally untenable for another reason. More particularly
we find that (1) appellants' March 25, 1969 letter to petitioner contemplated further meetings before a finalized determination
would be made by appellants and (2) the subsequent meeting between appellants and petitioner on May 29, 1969 establishes that
the latter date was the cut-off date when appellants decided they would not issue the requested site approval. Thus, this
proceeding, to review said latter determination, was unquestionably timely (cf. Matter of Walton v. Town of Brookhaven, 41
Misc. 2d 798, 800). Since appellants' defense of the Statute of Limitations is untenable for the foregoing reasons, it is
immaterial that Special Term, in its decision granting [34 A.D.2d 826 Page 827]

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