Emmett v. Town of Edmeston , 771 N.Y.S.2d 568 ( 2004 )

Carpinello, J. (concurring in part, dissenting in part).

We cannot agree with the majority’s conclusion that respondent Town of Edmeston and the Town’s Zoning Board of Appeals (hereinafter ZBA) are not sufficiently “united in interest” to justify application of the relation back doctrine (see CPLR 203 [b]), thereby deeming the proceedings to be timely commenced against the ZBA. This is not the typical land use case in which the municipality is named as a party, but the affected property owner is not (see e.g. Matter of Chalian v Malone, 307 AD2d 619, 621 [2003]; Matter of Manupella v Troy City Zoning Bd. of Appeals, 272 AD2d 761, 763-764 [2000]; Matter of Llana v Town of Pittstown, 234 AD2d 881, 884 [1996]). In such instances, the lack of the requisite unity of interest is apparent. Here, however, both the municipality and the potentially impacted property owners were named, served and notified of the pendency of the proceeding.

As to the issue of unity of interest between the Town and the ZBA, the Court of Appeals has reaffirmed that “the ‘linchpin’ of the relation back doctrine” is notice to the unnamed respondent within the applicable limitations period (Buran v Coupal, 87 NY2d 173, 180 [1995], quoting Schiavone v Fortune, 477 US 21, 31 [1986]). The text of the brief notice of petition and petition at issue specifically references the ZBA no less than 21 times (exclusive of additional unambiguous references to the “Board” and the “Zoning Board”). Thus, when the pleadings were served on the Town Clerk, the person authorized to receive service on behalf of the ZBA (see CPLR 312), there could have been no confusion whatsoever as to the entity whose decision was being challenged. While there may indeed be circumstances where the interest of the Town and the ZBA are not united (see e.g. Matter of Commco, Inc. v Amelkin, 62 NY2d 260 [1984]), the instant record is simply insufficient to make that determination as a matter of law; nor do we view the Town’s default in these proceedings as indicative of any disunity. Preferring that the matter be resolved-on the merits, we would affirm.

Peters, J., concurs. Ordered that the judgment is reversed, on the law, without costs, motion granted and petition dismissed.