Obedian v. New York State Department of Environmental Conservation , 485 N.Y.S.2d 96 ( 1985 )

In a proceeding pursuant to CPLR article 78, inter alia, to vacate a determination of respondent New York State Department of Environmental Conservation, dated August 31, 1983, which denied the application of petitioners for a permit pursuant to the Tidal Wetlands Act, petitioners appeal from a judgment of the Supreme Court, Queens County (Pitaro, J.), dated June 7, 1984, which dismissed the petition as untimely.

Judgment affirmed, with costs.

Since the notice of petition and petition were concededly not served upon respondent until November 1, 1983, which was the 33rd day after respondent’s decision on September 29, 1983 denying petitioners’ request for a hearing, and two months after the date of the determination refusing to grant them a permit, petitioners’ proceeding pursuant to CPLR article 78 was untimely commenced (ECL 25-0404; Matter of Oak Is. Beach Assn. v Flacke, 96 AD2d 841, lv denied 62 NY2d 606). While ECL 25-0404 results in shortening the available period of limitation to within 30 days and may, in some situations, lead to a harsh result, the remedy lies with the Legislature. We have considered the arguments raised by petitioners and find them to be without merit. Thompson, J. P., Brown, Niehoff and Lawrence, JJ., concur.