Vetrone v. Mackin

Decision Date29 June 1995
Citation628 N.Y.S.2d 866,216 A.D.2d 839
PartiesIn the Matter of Patsy P. VETRONE et al., Appellants, v. F. Gerald MACKIN, as Supervisor of the Town of Hancock, et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Page 866

628 N.Y.S.2d 866
216 A.D.2d 839
In the Matter of Patsy P. VETRONE et al., Appellants,
v.
F. Gerald MACKIN, as Supervisor of the Town of Hancock, et
al., Respondents.
Supreme Court, Appellate Division,
Third Department.
June 29, 1995.

James N. Cahill, Endicott, for appellants.

Leonard E. Sienko Jr., Town Atty., Hancock, for respondents.

Before MIKOLL, J.P., and CREW, YESAWICH, PETERS and SPAIN, JJ.

MIKOLL, Justice Presiding.

Appeal from a judgment of the Supreme Court (Mugglin, J.), entered June 15, 1994 in Delaware County, which, in a proceeding pursuant to CPLR article 78, granted respondents'

Page 867

motion to dismiss the petition as barred by the Statute of Limitations.

In the summer of 1992 petitioners, owners of real property in the Town of Hancock, Delaware County, obtained conditional approval from the Hancock Town Board to extend a private logging road on their property across Town property to a Town road. Problems subsequently developed, including a boundary [216 A.D.2d 840] line dispute with a neighbor, and petitioners failed to comply with the conditions set by the Board. Petitioners allege, and respondents did not dispute on the argument before Supreme Court, that the Board suspended its permission to extend the private road by decision dated December 3, 1993.

On March 11, 1994, petitioners filed a notice of petition and petition, pursuant to CPLR article 78, together with a $170 filing fee at the County Clerk's office. The petition sought, inter alia, to annul the decision of the Board dated December 3, 1993 "suspending the license granted to extend a private road". However, the notice of petition and petition filed and served did not contain a return date. The attorney for respondents advised petitioners that the return date was missing and on March 31, 1994, petitioners filed a new notice of petition and petition containing a return date at the County Clerk's office under the same index number but without paying another $170 filing fee. On April 6, 1994, respondents moved to dismiss the petition on the ground, inter alia, that the Statute of Limitations had run.

Supreme Court granted respondents' motion to dismiss, finding that the original notice of petition and petition filed March 11, 1994 and the copies thereof served on respondents did not contain a return date and thus were jurisdictionally defective and a nullity. The court also found that the second filing and service of a notice of petition and petition under the...

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  • Fry v. Village of Tarrytown
    • United States
    • New York Court of Appeals Court of Appeals
    • March 27, 1997
    ... ... Porr, 89 N.Y.2d 327, 332, 653 N.Y.S.2d 82, 675 N.E.2d 836; Matter of Vetrone v. Mackin, 216 A.D.2d 839, 841, 628 N.Y.S.2d 866) ...         Although respondents appeared in the proceeding without asserting the ... ...
  • Abramov v. Board of Assessors, Town of Hurley, Ulster County
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    • New York Supreme Court — Appellate Division
    • January 28, 1999
    ... ... Koenig, supra, at 820, 655 N.Y.S.2d 205; Enos v. City of Rochester, supra, at 162, 619 N.Y.S.2d 459; see also, Vetrone v. Mackin, 216 A.D.2d 839, 841, 628 N.Y.S.2d 866; Dawson v. Bastine, 231 A.D.2d 548, 548-549, 647 N.Y.S.2d 277), which cannot be extended by the ... ...
  • Krenzer v. Town of Caledonia
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    • New York Supreme Court
    • August 29, 1995
    ... ... They were filed within the meaning of the statute. Enos v. City of Rochester, 206 A.D.2d at 162, 619 N.Y.S.2d 459. See also, Vetrone v. Mackin, 216 A.D.2d at 841, 628 N.Y.S.2d at 868 (3rd Dept.1995) ("the statute of limitations will not be tolled absent both delivery and payment.") ... ...
  • Matter of Cartier v. County of Nassau
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    • New York Supreme Court — Appellate Division
    • March 12, 2001
    ... ... ___, 718 N.Y.S.2d 98; Matter of Vetrone v Mackin, 216 A.D.2d 839; Matter of Stream v Beisheim, 34 A.D.2d 329, 330-331) ...         Since the Supreme Court did not have personal ... ...
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