Gonkjur Associates v. Abrams

57 N.Y.2d 853 | NY | 1982

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in the opinion of Justice Max Bloom. Because the order appealed from finally determined the proceeding, we do not answer the certified question (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], pp 357-358).

We have not previously passed upon the construction of a statute requiring, as did subdivision 2 of section 352-e of the General Business Law, at the time here relevant, that a public official act “not later than thirty days after * * * filing.” We add to Justice Bloom’s decision, therefore, that although the phrase “not later than” may, when viewed against the remedial objectives of the statute in which the phrase appears, be construed to be directory only (Usery v Whitin Mach. Works, 554 F2d 498, 501-502; United States v Morris, 252 F2d 643, 648-649), where, as here, the Attorney-General is not foreclosed by filing from further action protective of the public interests and the purpose of the time limitation is to protect the property owner against unreasonable delay, the statute is properly construed to be mandatory, rather than directory (see Matter of Whalen v Lefkowitz, 36 NY2d 75, 78).

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur; Judge Gabrielli taking no part.

Order affirmed, with costs, in a memorandum. Question certified not answered as unnecessary.