State of New York
Supreme Court : County of Monroe

_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

The procedural history in this challenge to the relocation of a Chinese buffet restaurant is unusually complicated, and at this stage, where all respondents have moved to dismiss on points of law, the court's task is primarily to disentangle the numerous sets of papers and determine which claims, if any, survive the respondents' objections. The court rules that the petitioner may and must join Peter Sun and China Buffet of Greece, Inc., as parties; that only the claims arising out of the Zoning Board of Appeals' determination of the variance may be litigated under CPLR Article 78; and that any claims for damages as between Greece Park Realty and ABC, LLC, should be severed and are to be maintained as a separate action. All other claims are dismissed.

Greece Park Realty and ABC are owners of parts of a 30-acre shopping plaza in the Town of Greece. Peter Sun operates a business, China Buffet of Greece, Inc., which currently occupies leased space close to the plaza. His landlord has leased this property to a drug store chain, however, and Mr. Sun therefore has had to find another location for his restaurant.

In the portion of the plaza owned by ABC there is a location Mr. Sun felt was suitable. ABC was surely eager to have him as a tenant, not only because he ran an ongoing business but because the space he wanted to lease had been vacant for two years or more. Arrangements for the lease proceeding smoothly, Mr. Sun thus applied to the Town of Greece for a special use permit and a SEQRA declaration, and to the Zoning Board of Appeals for a variance. This last was required because of a concern that the restaurant's parking needs exceeded the spaces available in the plaza.

On May, 18, 2004, the Town Board granted the special use permit and determined that the restaurant proposal was a Type II action under SEQRA. This decision was filed on May 24. The following week the variance application came before the Zoning Board of Appeals, which heard from the applicant and Greece Park Realty on both June 1 and June 15. On June 15 the Board granted the variance, adding that the application presented no SEQRA issues. This decision was filed, according to a note in the municipal respondents' papers, on June 22. For both decisions the applicable limitations period is 30 days, as provided in the Town Law.

The petitioner had already begun to challenge these determinations. On June 17 its counsel filed a petition and notice of petition raising issues with respect to both of them. This petition named the three municipal parties and ABC, LLC, as respondents.

On July 7, however, counsel filed an amended petition, naming both Peter Sun and China Buffet as additional parties. The very next day he filed an amended supplemental petition and an Order to Show Cause seeking a preliminary injunction, which referred to but did not include a copy of the supplemental amended complaint. These documents also listed Mr. Sun and his business as respondents.

A flurry of responses and letters ensued. Petitioner's final formal act before oral argument was the filing of a motion to add Mr. Sun and China Buffet as parties, which counsel did on July 15. The affirmation in support of this motion stated that counsel did not believe that a court order was needed for these parties to be added, but that he felt it necessary to bring the motion out of an abundance of caution. As has been required by those cases which have considered such motions (see below), a copy of the proposed petition was included in these papers.

Four major questions are presented by these facts: Are Peter Sun and China Buffet necessary parties to this proceeding? Were they properly added by petitioner's amended petitions? What is the effect, if any, of the motion of July 15? And if the amendment is effective as of a date between the expiration of two different limitations periods, does the doctrine of relation back apply and allow the petitioner to challenge both the Town Board and the Zoning Board of Appeals determinations?

Regardless of whether a lease had been signed by Mr. Sun and ABC, it is clear to the court that he and his firm are necessary and indispensable parties. They are listed as applicants before both boards and they would clearly be affected by a reversal of these determinations (see, on this point, Matter of VanDerwerker v Vil. Of Kinderhook ZBA, 295 AD2d 676677; Matter of Amodeo v Town Bd. Of Town of Marlborough, 249 AD2d 882, 884). Indeed, their interests are the sine qua non of the applications, and it is inconceivable that this action could proceed without their presence.

Petitioner relies as well on his two separate amended petitions and notices of petition, which he duly served on both Mr. Sun and the corporation. He argues that CPLR 1003 allows amendment and joinder of parties without leave of the court within 20 days of filing of the original summons.

As the respondents point out, however, an Article 78 proceeding is a special proceeding, and is primarily governed by Article 4 of the CPLR. In a special proceeding leave of the court is required to add additional parties (CPLR 401). The attempted addition of Mr. Sun and China Buffet by unilateral amendment of the petitioner's papers is thus a nullity, and service of the papers on the proposed respondents is thus of no legal significance.

Petitioner's counsel has argued that the continuation of this requirement in Article 4 is a legislative oversight, as Article 10 was subsequently amended to allow unilateral joinder of parties. The court notes that even a legislative oversight must be left for correction by the legislature--especially when the question is a procedural one. In any event, there is no basis for the respondent's argument on this point. The limitations on joinder are "appropriate because the special proceeding is intended to bring the dispute before the court 'immediately'" (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 401:2, citing NY Adv Comm on Prac & Proc, Third Prelim Rep, Legis Doc No. 17, p. 155 [1959]). That consideration is as valid today as it was in 1959.

Nothing done by the petitioner without leave of court could therefore result in the court's having jurisdiction over the parties not named in the original filing. The motion filed on July 15, however, serves to toll the Statute of Limitations during its pendency, as the Court of Appeals explained in Perez v Paramount Comm., Inc. (92 NY2d 749).

At oral argument, especially, respondents argued that the Perez case did not apply because of the strictness with which courts must construe municipalities' derogation of sovereign immunity. The court finds this argument unconvincing. The Court of Appeals said nothing in the Perez decision that suggests that it should be limited to negligence actions, and at least one appellate court has applied it in the context of an Article 78 proceeding (Matter of Lodge v D'Aliso, 2 AD3d 525 [denied for failure to file supplemental petition and notice of petition with motion]). Moreover, the courts already enforce the Statute of Limitations in all other cases with absolute strictness. It is impossible to imagine any more restrictive standard that should be employed in dealing with the already much abbreviated time in which these actions must be brought.

The court holds, therefore, that this action was commenced against Mr. Sun and China Buffet on July 15. As such, it is timely with respect to the determination of the Zoning Board of Appeals but untimely with respect to the decision of the Town Board. As these parties are indispensable ones, the court must dismiss the action against the Town Board, while continuing that against the Zoning Board.

Petitioner attempts to save the entire action by appealing to the doctrine of relation back. While it is arguably the case that all respondents are united in interest here, and that there is no genuine prejudice in requiring Mr. Sun and China Buffet to address all the issues, the petitioner's argument fails because he cannot show that his failure to name them was the result of a mistake as to the identity of parties (see generally, Buran v Coupal, 87 NY2d 173, 178-181; Virelli v Goodson-Todman Enterprises, 142 AD2d 479 [in both cases, omission of the requirement that the mistake be "excusable"]).

The claim by petitioner that he was unable to determine the names of the additional parties is a very weak one, as the record before the two boards show these parties as applicants (see, Matter of Amodeo v Town Bd., supra, 249 AD2d 882 at 884). Moreover, Mr. Sun's restaurant was across the street from the petitioner's property and it would have been an easy matter to investigate this question if the petitioner had any genuine doubts about the ownership of the business.

Nor would it have been difficult for Mr. Sun to conclude that the petitioner was uninterested in attacking the decision of the Town Board. It appears from the papers that the petitioner's major concern is with the number of parking places available for the businesses at the plaza. This was the issue argued before the Zoning Board.

Nothing in the character of the applications would have put Mr. Sun on notice that the special use permit and the SEQRA determination were being challenged in court. The Article 78 proceeding should then go forward only insofar as the petitioner seeks review of the variance granted by the Zoning Board of Appeals. While that body made some conclusions regarding SEQRA, these remarks are surplusage. Once the Town Board declared the proposal a Type II action, no further SEQRA determinations were called for (6 NYCRR § 617.5). The parking issue, and that alone, remain for the court's determination.

There remains an action between petitioner and ABC for damages. The court sees no reason for bringing this request for private relief in the context of an Article 78 proceeding. The relevant legal facts are entirely different. This claim is therefore severed entirely and will proceed as a plenary action. Argument on the parking issue in the Article 78 proceeding will be held at 9:30 on August 26, 2004. Counsel for ABC may prepare the order. No costs are payable at this stage.

DATED: Rochester, New York

August 13, 2004

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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