Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and after hearing oral argument held on December 18, 2024, pursuant to CPLR Article 78 and §§ 3211(a)(5) and (a)(7), for the reasons stated below, Respondents' motion to dismiss the Article 78 Petition (motion sequence # 4) is GRANTED and the Petition (motion sequence # 1) is dismissed in its entirety with prejudice.

Petitioner, a domestic corporation authorized to collect blood and Covid-19 samples for testing,^[FN1] operated mobile testing services from parked vehicles throughout New York City during the Covid-19 pandemic.^[FN2] Respondents include the New York City Department of Environmental Protection ("DEP"), empowered to enforce New York City Administrative Code § 24-163(a), which prohibits vehicle idling for more for than three minutes. DEP issued numerous summonses to Petitioner for alleged idling violations.^[FN3]

Petitioner commenced this Article 78 proceeding challenging multiple summonses issued by DEP and the Office of Administrative Trials and Hearings ("OATH") decisions upholding those violations.^[FN4] On November 5 and 21, 2021, DEP issued summonses alleging violations of § 24-163(a). Initially, OATH hearing officers recommended dismissal of these summonses.^[FN5] However, on appeal, the OATH Appeals Division reversed the recommended dismissals on March 23, 2023, sustaining the violations and imposing civil penalties of $350 each.^[FN6]

Petitioner now seeks vacatur of the OATH decisions, an injunction against future or ongoing idling summonses, expungement of records, declaratory relief, and monetary.^[FN7]

An Article 78 proceeding provides limited judicial review of administrative determinations.^[FN8] The Court's role is to determine whether the agency's decision was made in violation of lawful procedure, affected by an error of law, or was arbitrary and capricious. A determination is arbitrary and capricious if it is made without sound basis in reason or regard to the facts.^[FN9] Where an agency acts within its statutory authority, applies detailed legislative-based methods, and its findings are supported by substantial evidence, courts must accord deference to the agency's expertise and factual determinations. is within an area of the agency's expertise and is amply supported by the record, judicial deference and substantial weight must be accorded to [*2]the determination.^[FN10] Courts may not substitute their judgment for that of the agency, which is entitled to deference in interpreting its own regulations.^[FN11] Additionally, an agency is to be afforded wide deference in the interpretation of its regulation and, to a lesser extent, in its construction of the governing statutory law.^[FN12] However, an agency cannot engraft additional requirements or assume additional powers not contained in the enabling legislation.^[FN13]

Claims challenging summonses not yet adjudicated by OATH are not ripe for judicial review. Judicial intervention requires a final, binding administrative determination that causes concrete injury. An administrative action is ripe only when final, binding, and inflicting a concrete injury. Greenberg v. Assessor of Town of Scarsdale, 121 AD3d 986, 989 (2d Dept. 2014); Save the View Now v. Brooklyn Bridge Park Corp., 156 AD3d 928 (2d Dept. 2017). Because the summonses at issue remain pending before OATH or the agency, these claims are dismissed for lack of ripeness.

Pursuant to CPLR § 217(1), an Article 78 proceeding must be commenced within four months of the final administrative determination.^[FN14] The limitations period begins to run when the agency reaches a definitive position and the party suffers a concrete injury, typically upon receipt of written or oral notice.^[FN15] "Generally, the statute of limitations begins to run when the party receives oral or written notice, or when the party knows or should have known, of the adverse determination."^[FN16]

Here, the final OATH Appeals Division determinations were issued on March 23, 2023, and this proceeding was commenced well beyond the four-month deadline.

Petitioner's argument that CPLR § 205(a) saves its claims due to a prior dismissed [*3]proceeding is without merit.^[FN17] Where a prior action is dismissed for lack of personal jurisdiction, no tolling occurs and CPLR § 205(a) does not apply. Wells Fargo Bank, N.A. v. Eitani, 148 AD3d 193 (2d Dept. 2017). Here, Petitioner failed to properly serve Respondents in the prior action, and no jurisdiction was acquired.^[FN18] Moreover, courts decline to convert a time-barred plenary action into an Article 78 proceeding to circumvent limitations.^[FN19]

Therefore, Petitioner's claims challenging the March 2023 determinations are dismissed as untimely.

Even assuming arguendo the claims were timely, OATH's determinations were neither arbitrary nor capricious and were "not taken without sound basis in reason or regard to the facts."^[FN20] Petitioner argued for an exemption to § 24-163(a) based on the necessity of idling to power electronic devices such as computers and scanners.^[FN21] The OATH Appeals Division rationally rejected these defenses, finding Petitioner's evidence insufficient to establish the claimed exemption.

An agency's interpretation of its own regulation is entitled to deference and must be upheld if reasonable.^[FN22] The determinations here were supported by the record and consistent with applicable law.

For the foregoing reasons, Respondent's motion to dismiss the Petition is granted and the petition is dismissed with prejudice. All other relief not expressly addressed herein has been considered and denied. Given the Court's decision, the Temporary Restraining Order ("TRO") previously entered is dissolved and any further requests for injunctive relief are denied as moot.

For the reasons stated above, it is hereby:

ORDERED that Respondents' motion to dismiss the Petition (Motion Sequence No. 4) is granted in its entirety.

It is further ORDERED that the Article 78 Petition (Motion Sequence No. 1) is dismissed with prejudice in its entirety.

It if further ORDERED that the Temporary Restraining Order previously entered ^[FN23] is dissolved, and all requests for preliminary or further injunctive relief are denied as moot.

All other relief not expressly addressed were considered and denied.

This constitutes the Decision and Order of the Court.