Atiyeh v. Village of North Hills

• Decision Date: 29 August 1977
• Court: New York Supreme Court
• Parties: Philip A. ATIYEH, as president and chief executive officer of the Council of Greater Manhasset Civic Associations, an unincorporated association, Muriel Koeptel, and the Town of North Hempstead, Petitioners, for a judgment pursuant to article 78 of the civil practice law and rules v. VILLAGE OF NORTH HILLS and Frank Martucci, as Mayor of the Village of North Hills, Louis Foti, Teresa Shamscher, Edward Schumacher and Frank O'Connor, as Trustees of and constituting the Board of Trustees of the Village of North Hills, Respondents.

Page 105

398 N.Y.S.2d 105

91 Misc.2d 365

Philip A. ATIYEH, as president and chief executive officer

of the Council of Greater Manhasset Civic Associations, an

unincorporated association, Muriel Koeptel, and the Town of

North Hempstead, Petitioners, for a judgment pursuant to

article 78 of the civil practice law and rules v. VILLAGE OF NORTH HILLS and Frank Martucci, as Mayor of the

Village of North Hills, Louis Foti, Teresa Shamscher, Edward

Schumacher and Frank O'Connor, as Trustees of and

constituting the Board of Trustees of the Village of North

Hills, Respondents.

Supreme Court, Special Term, Nassau County, Part I.

Aug. 29, 1977.

Edward G. McCabe, Manhasset, for petitioners.

John F. Woog, Garden City, for respondents.

BERNARD TOMSON, Justice.

This Article 78 proceeding, which was brought on by order to show cause seeks to enjoin respondents from holding a public hearing on an application to rezone 81k acres and to obtain other incidental relief. The novel issue presented is whether there is required strict compliance with the statutory direction for "written notice " to be "given " to the "town clerk " of an adjoining town. We hold that it is, unless waived by the town's appearance at the zoning hearing.

Section 7-706(1) of the Village Law provides in relevant part that "written notice of any proposed (zoning) change or amendment affecting property within five hundred feet of the boundaries of any . . . town . . . shall be given . . . to the clerk of such . . . town . . . at least ten days prior to the date of such public hearing." (emphasis supplied)

A hearing was directed on the threshold as to whether the Town of North Hempstead was "given " the "written notice " required by section 7-706(1) of the Village Law. (See, in this connection, 23 Opns.St.Comp. 270 (1977); and cf. Kantrowitz v. Dairymen's League Co-op. Assoc., 272 App.Div. 470, 71 N.Y.S.2d 821, app. den. 272 App.Div. 979, 73 N.Y.S.2d 484, affd. 297 N.Y. 991, 80 N.E.2d 366; Capra v. Lumbermens Mutual Cas. Co., 43 A.D.2d 986, 352 N.Y.S.2d 58; Caprino v. Nationwide Mut. Ins. Co., 34 A.D.2d 522, 308 N.Y.S.2d 624; Kordal v. Niesley, 66 Misc.2d 781, 322 N.Y.S.2d 189; People v. Rakity, 77 Misc.2d 324, 352 N.Y.S.2d 803; citing Creasy v. United States, 4 F.Supp. 175; Hobart-Farrell Plumbing & Heating Co., v. Klayman, 302 Mass. 508, 19 N.E.2d 805; Teichbug v. Blair & Co., 63 Misc.2d 1073, 314 N.Y.S.2d 284).

There was testimony adduced at the hearing that on July 27, 1977 a copy of the notice for the scheduled hearing was mailed in an envelope (furnished by the developer) addressed not to the Town Clerk but rather to "Town of North Hempstead, Town Hall, 220 Plandome Road, Manhasset, New York." It was established however, that such mailing was a departure from the Village's prior practice of mailing, by certified mail, such hearing notices in envelopes addressed to the "Town Clerk." The Village contends that "someone" in Town Hall must have received the notice. The testimony and evidence adduced at the hearing clearly established that that "someone" (if anyone) was not the Town Clerk, all of whose records relating to the Village were produced and convincingly demonstrated that the Town Clerk never received the written notice.

The Village of North Hills, citing Brechner v. Village of Lake Success, 25 Misc.2d 920, 208 N.Y.S.2d 365, urges that the Town of North Hempstead received "constructive notice of the hearing and that such 'constructive notice' satisfied the requirements of section 7-706(1) of the Village Law. Brechner is distinguishable in that there, an attorney for the town appeared at the scheduled hearing although the wrong town official had received the notice of the hearing. Only after the adoption of the ordinance did the town attack the validity of the notice. In the instant proceeding, the Town of North Hempstead attacked the validity of the notice prior to the hearing and no hearing has yet been held. Further, in Brechner, Mr. Justice Meyer stated, in finding that the defects were not substantial:

". . . It finds that notice was given to the wrong officials of those bodies (Supervisor instead of Town Clerk; County Clerk instead of Clerk of the Board of Supervisors), but concludes that these are defects in 'unsubstantial detail' (Village of Lynbrook v. Cadoo, 252 N.Y. 308, 313, 169 N.E. 394, 396). The town appeared by attorney at the hearing and the evidence shows that both the town and the county received the notice required by section 1608 of the Nassau County Government Law and took no action thereon."

The citation relied on, Village of Lynbrook v. Cadoo, supra, demonstrates the inapplicability of Brechner on the instant facts. In Lynbrook at page 313, 169 N.E. at page 396, the Court of Appeals plainly stated that only "substantial compliance" was required because of a specific provision of the Village Law, which was given retroactive effect:

"In this connection it may not be irrelevant to...