By letter dated April 12, 2004, the Mayor responded to the Comptroller, directing him to register the contract pursuant to New York City Charter § 328(c). On April 21, 2004, the Comptroller brought this combined special proceeding (CPLR article 78) and declaratory judgment action (CPLR 3001 ), seeking annulment of the contract with Snapple, a declaration that the contract was invalid and could not be implemented, and a declaration that New York City Charter § 362(a) (defining “concession”) includes intangible property. The Comptroller sought summary judgment declaring that § 362(a) applies to all types of property; the City cross-moved for summary judgment dismissing the proceeding in its entirety and raised a statute of limitations defense.[2]

Supreme Court determined that the entire contract had been filed, and Charter § 328(b) (ii) did not permit the Comptroller to raise an objection attacking only part of it.[3] The court rejected the City's statute of limitations defense, concluding that the last actions the Comptroller challenged--the filing of the contract on February 20, 2004, and the Mayor's overruling of his objections on April 12, 2004--were within four months of the commencement of the proceeding for article 78 review and the declaratory judgment claim that grew out of it. Concluding that the statute of limitations had not yet begun to run on the claim regarding the definition of property, the court held that Charter § 362(a), defining “concession” as “a grant made by an agency for the private use of city-owned property for which the city received compensation,” did not limit the meaning of “property” to “real property” but included intangible property. The court observed that numerous other Charter provisions used the terms “real” or “personal” when narrowly defining the term property, but § 362(a) did not and thus the word “property” should be construed broadly to include intellectual property.

The Appellate Division unanimously affirmed, concluding that Charter § 328(b) (ii) permitted the Comptroller to object only to the existence or nonexistence of the certifications, not to look beyond them to inspect the underlying process. Additionally, the court agreed that the term “property” under Charter § 362(a) includes intangibles such as intellectual property, recognizing that although the legislative history of the City Charter provision and concessions indicated the provision had been applied predominantly to real property, there was no sign of an intent to so limit its application.[4] We now affirm.

As a preliminary matter, we reject the contention advanced by the City and Snapple that the statute of limitations bars the Comptroller's claim that the contract is invalid because it could not be registered properly under Charter § 328. We disagree that December 10, 2003--the date of the FCRC vote--was the trigger date for the statute of limitations. As noted recently in Matter of Best Payphones, Inc. v Department of Info. Tech. and Telecom. (5 3 30, 34 [2005]), there are two requirements for determining when an agency action is “final and binding upon the petitioner” for article 78 statute of limitations purposes ( see CPLR 217 [1]): the agency must have arrived at a definite position on the issue inflicting actual injury, and the injury may not be significantly ameliorated either by further administrative action or steps taken by the complaining party ( id. at 34; see also Matter of City of New York [Grand Lafayette Props. LLC], 6 NY3d 540 [2006]).

Here, the agency determination became “final and binding” no earlier than February 20, 2004, the date the City filed the contract with the Comptroller for registration. At that point, the alleged procedural infirmity upon which the Comptroller bases his argument became irrevocable--the contracting parties had executed and filed a final, formal agreement subject to registration under § 328(b). There was no further ameliorative administrative action expected, and the only steps left for the Comptroller were to set forth his objections on the ground that certification had not been made (§ 328[b] [ii]), and to bring suit.

We agree with the City and Snapple, however, that the statute of limitations bars the Comptroller's additional claim that the contract is void based on the Mayor's failure to obtain total FCRC approval. That claim stems not from any injury asserted by the Comptroller under the Charter, but essentially from his role as an aggrieved voting member of the FCRC. On that claim, the statute began to run on December 8, 2003--the date the Mayor refused to submit the marketing portion of the contract to the FCRC. After that date, no further FCRC action--with respect to the marketing portion of the contract--or steps taken by the Comptroller, other than his vote, were anticipated.[5]

Turning to the substantive questions, we hold that under settled statutory interpretation principles, the term “property” in Charter § 362(a) is not limited to “real property.”[6] Those same principles of statutory interpretation, however, compel the conclusion that the Comptroller may not, under Charter § 328(b)(ii), transform a procedure for registering a contract into a substantive investigation of a contract.

Whether the term “property” in § 362(a) should be limited to real property is, we acknowledge, a close question. Indeed, following approval of the Charter by the voters, Charter drafters Frederick A. O. Schwarz, Jr. (chair of the New York City Charter Revision Commission [NYCCRC] established in January 1989) and Eric Lane (NYCCRC's executive director and counsel) observed that,

“[t]he City possesses inalienable rights to its streets, highways, avenues, parks, wharves, and other public property. There is enormous demand for the use of this property. Through franchises, revocable consents, concessions, and licenses, the City has established techniques to grant permits to private entrepreneurs, such as cable, bus, and ferry companies; restaurants; and newspaper purveyors, for use by the city's residents. The distinction among these uses provokes uncertainty, but we offer our view (which is now part of the Charter), and caution as Schwarz stated at one public meeting: 'Neither the King nor the deity, in fact, has laid down immutable rules on what is a franchise, and what is a concession, and what is a revocable consent'”

(Schwarz & Lane, The Policy and Politics of Charter Making: The Story of New York City's 1989 Charter, 42 NYL Sch L Rev 723, 873 and n 519 [1998]).

The City makes a plausible argument that the term “property” as it relates to concessions, when analyzed within its historical and legislative context, was meant to refer only to real property. Perhaps the City's most favorable evidence that the current Charter's drafters intended the narrower meaning of “property” is found in a June 29, 1989 draft of what became § 362(a), defining concession to mean:

“a grant made by any agency for the operation or management of an enterprise for profit on city-owned property for which the city receives compensation”

( see Draft of Proposed Charter for the City of New York dated June 29, 1989 [emphasis added]).

This sentence, the City maintains, must employ the term “property” to refer to real property, because it is impossible to manage or operate a business “on” intangible property. The Comptroller counters, however, that the drafters removed the word “on” from the provision, thereby demonstrating some intent not to limit the types of property covered by § 362(a).

We choose to construe the term “property” in accordance with the clear legislative language recognizing that, should the City see fit, it may seek amendment of the Charter provision to reflect a narrower view of the term. It is fundamental, of course, that we turn first to the text itself when interpreting a statute, as the best evidence of legislative intent. Generally, unambiguous language is determinative, and courts must give effect to the plain meaning of a statute's terms ( see Matter of Theroux v Reilly, 1 NY3d 232, 239 [2003]). The terms here could not be clearer: “'[c]oncession' shall mean a grant by an agency for the private use of city-owned property” (§ 362[a] [emphasis added]). The only qualifier of the term “property” in this definition is “city-owned”--not real, not personal, not tangible or intangible. Black's Law Dictionary states that “property” is “commonly used to denote everything which is the subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal” (1979). We see no reason to limit “property” any more than the drafters have.

As the Comptroller emphasizes, when the drafters of the Charter meant “real property” in § 362, they used those words. For example, § 362(d), defines the term “Revocable Consent” and twice uses the term “real property,” in contrast to “inalienable property”:[7]

“'Revocable Consent' shall mean a grant by the city of a right, revocable at will, (1) to any person to construct and use for private use pipes, conduits and tunnels under, railroad tracks upon, and connecting bridges over inalienable property, (2) to an owner of real property or, with the consent of the owner, to a tenant of real property to use adjacent inalienable property for such purposes as may be permitted by rules of the department of transportation or the department of information technology and telecommunications or (3) to a public service corporation for facilities ancillary to, but not within, a franchise granted prior to the effective date of this section.”

Thus, within § 362 as a whole, the drafters took care to define the term “property” in no less than three distinct ways--real property (§ 362[d]), inalienable property (§ 362[d]) and City- owned property (§ 362[a]). Moreover, there are more than 50 other sections of the Charter expressly referring to “real property”--not “property.” We conclude that the drafters' decision not to use the term “real property” in § 362(a) indicates that they did not intend the narrower construction.

The Comptroller also posits that in those sections where the drafters intended for property-related terms to have meanings that might vary from their commonly accepted meanings, they said so explicitly--in § 210(8), for example, the drafters made clear that the term “real property” should include items such as liens and easements that are not generally viewed as real property ( see also Charter § 1150[12]). Thus, time after time, the drafters purposefully chose the term “real property” when that term was intended, and specially defined it or did not use it at all when something else was intended.