John De Francisco Et Al. v. David Michel

Order and judgment unanimously affirmed, without costs. Memorandum: We agree with Special Term that the doctrine of res judicata mandates the dismissal of the cause of action seeking to vacate the building permit. para. Concerning the causes of action seeking to void approval of the project and to enjoin construction of the project, we conclude they are barred by the Statute of Limitations (CPLR 217). Insofar as these causes of action may be considered in the nature of certiorari, they were barred four months after the determination to be reviewed became final. Clearly, the determination became final no later than September 21, 1982, the date the Housing Authority contracted with Conifer Development, Inc., for the construction and purchase of the project. Although the petitioners had knowledge of this determination shortly after it was made, they did not bring this proceeding until May 3, 1984, well beyond the four-month period of limitations. para. If we consider the causes of action as being in the nature of mandamus to compel the Housing Authority to perform a mandatory duty, CPLR 217 provides that they must be commenced within four months "after the respondents refusal, upon the demand of the petitioner * * * to perform its duty". Although there is no showing here of a demand and refusal, "[it] is the settled law that the demand must be made within a reasonable time after the right to make the demand occurs or * * * within a reasonable time after [petitioners become] aware of the facts which give rise" to the claim (Matter of Devens v Gokey, 12 A.D.2d 135, 136-137, affd 10 N.Y.2d 898). Petitioners were aware, no later than September 21, 1982, that the Housing Authority had given final approval of the project without complying with section 150 of the Public Housing Law and yet they failed, prior to the institution of this lawsuit, to demand compliance with that section. Hence, their causes of action in the nature of mandamus are time barred.