State of New York
Supreme Court : County of Monroe

Susan K. Bianchi, Individually,
and as trustee of the Angela Bianchi
Irrevocable Trust,
Petitioners,

for a Judgment under Article 78 of the CPLR

- against -

Index No. 2001/7339

The respondent in this Article 78 proceeding has moved to dismiss the petition for failure to join a necessary party. The proceeding seeks to annul site plan approval of a 169-unit townhouse development adjacent to petitioners' property in the town of Greece. Final site plan approval for the development was granted by the town on May 31, 2001. The petition, which was filed on June 28, 2001, named only the town Planning Board as respondent. The Board's motion argues that failure to name BRW of Greece, LLC, the applicant/developer, as a party renders the petition fatally defective under CPLR 1001. Under CPLR 1003 the remedy for such failure is dismissal without prejudice. Since the 30-day statute of limitations for Article 78 proceedings has run on the planning board decision, however, this would effectively end the action.

This is, interestingly, an issue on which the Third Department has written extensively but the Fourth Department has not. The court is bound by cases such as Matter of Manupella v Troy City Zoning Board of Appeals (272 AD2d 761) and Matter of O'Connell v Zoning Bd. Of Appeals of Town of New Scotland (267 AD2d 742); as in that latter case, "petitioners appeared before the Zoning Board at the public hearing in opposition to the granting of the *** variance, and were indisputably aware that *** [the applicant] owned the subject property and had applied for a *** variance. *** Additionally, *** [the applicant] did not voluntarily appear in the action and joining *** [it] after the Statute of Limitations has expired is not favored by the courts" (267 AD2d at 743-744).

Petitioners' attorney argues that necessary parties are only those that would be "inequitably" affected by the granting of a petition, and that BRW would not be so affected; it would simply find its application pending before the Board once again, and "it may very well be that BRW develops this site with its current plan in tact [sic]" (Memorandum , August 14, 2001, 2). This is disingenuous. The decision allowed BRW to proceed with its construction; if annulled, BRW would suffer delays and additional expenses. Moreover, it stretches credulity to believe that petitioners would be satisfied with a second approval of the same site plan. Their petition is ample evidence of their discontent with the size and scope of the proposed development.

In any event, petitioners' counsel has misquoted the case law; "A party whose interest may be inequitably or adversely affect by a potential judgment must be made a party in a CPLR article 78 proceeding (Matter of Manupella v Troy City Zoning Board of Appeals, supra, 272 AD2d at 763, emphasis added). Nor are the cases he cites relevant; in Schulz v DeSantis (218 AD2d 256) the issue was a Mayor's authority to vote in a city council, and the Appellate Division held that the council itself and its members were not necessary parties. This is completely inapplicable to the case at hand. So, too, is Mylod v Pataki (171 Misc 2d 556), where the repayment scheme adopted by the State and Federal governments for the proposed Westway in Manhattan was challenged as a violation of State law.

Petitioner also claims that BRW's non-intervention is proof that its interests would not be adversely affected by this proceeding. This argument, of course, would lead to the dismissal of every motion under CPLR 1003, for in every case the party not joined would have to be presumed to be not adversely affected. Petitioners would penalize BRW for failing to intervene once it heard of the suit. But it is a fundamental principle of civil procedure that mere knowledge that a lawsuit is pending is no substitute for actual service. No obligation to respond or act can be imposed on a party over whom the court has no jurisdiction. Petitioners' argument ignores this principle.

Petitioner's tardy faxed citation to Town Law § 268 is even less to the point. Petitioners claim that BRW is not a necessary party because it could also be sued at a later date under this provision. If BRW proceeds under a validly granted permit, however, no section 268 suit would be possible, because that section allows taxpayers to sue only to enforce the zoning laws, and then only if the town does not do so. Because the town has approved the plan there is clearly no violation on which to base such a suit.

The judicial interpretation of CPLR 1001 and 1003 in the context of zoning and SEQRA cases is consistent, clear, and reasonable, and petitioners' failure to name BRW as a respondent requires dismissal of the petition. Mr. Mastrella may prepare an order so providing, without costs or disbursements.

ANDREW V. SIRACUSE, J.

DATED: Rochester, New York

August 20, 2001

Andrew V. Siracuse, J.S.C.

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

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