## Facts

- Best Payphones, Inc. owned and operated sidewalk public pay telephones on New York City property regulated by the Department of Information Technology and Telecommunications (DOITT).
- In August 1999, the City approved Best’s payphone franchise subject to conditions, including execution and delivery of a Franchise Agreement and closing documents.
- On January 13, 2000, DOITT notified Best that it had not submitted the executed Franchise Agreement and required closing documents and that the City could be deemed to have determined not to approve a franchise for Best.
- The January 13 letter gave Best 60 days to: (1) sell its payphones to a City-franchised entity, (2) remove the phones from City property, or (3) submit executed franchise and closing documents; otherwise, the phones would be subject to removal and Best would be treated as a non-franchise holder.
- Best did not pursue any option within 60 days; in early May 2000, the City issued violations and began removing Best’s phones.
- On May 10, 2000, after enforcement began, Best executed and delivered the Franchise Agreement.
- On July 11, 2000, Best filed an Article 78 petition seeking to compel DOITT to accept the executed agreement, permit an asset sale, and, if needed, allow a reapplication for a franchise.

## Issues

1. When did DOITT’s determination become “final and binding” on Best for purposes of the four-month statute of limitations in CPLR 217(1)?
2. Did the January 13, 2000 letter trigger the limitations period despite providing a 60-day period for compliance or mitigation?

## Decision

- The New York Court of Appeals affirmed dismissal of the Article 78 petition as time-barred.
- The Court held the January 13, 2000 letter was a final and binding administrative determination under CPLR 217(1).
- The limitations period began when Best received the January 13 letter, not when the City later issued violations, removed phones, or declined to accept late-submitted franchise documents.
- Because Best commenced the proceeding more than four months after January 13, 2000, the petition was untimely.

## Legal Principles

- Under CPLR 217(1), an Article 78 proceeding must be commenced within four months after the challenged determination becomes final and binding upon the petitioner.
- A determination is final and binding when: (1) the agency reaches a definitive position that inflicts concrete injury, and (2) the injury will not be significantly ameliorated by further administrative action or steps available to the complaining party.
- A notice that definitively fixes a party’s status and consequences can be final even if it offers a cure period or limited remedial options.
- Subsequent enforcement actions that implement an earlier determination do not restart or delay the limitations period.

## Conclusion

The Court treated DOITT’s letter deeming Best a non-franchise holder absent timely compliance as the operative final agency action, making Best’s later-filed Article 78 challenge untimely under CPLR 217(1).


Matter of Best Payphones, Inc. v. Department of Info. Tech. & Telecomms. of City of N.Y., 5 N.Y.3d 30 (N.Y. 2005)