Baker v. Town of Roxbury
Citation | 220 A.D.2d 961,632 N.Y.S.2d 854 |
Parties | In the Matter of Livingston BAKER et al., Respondents, v. TOWN OF ROXBURY et al., Appellants, et al., Respondent. |
Decision Date | 26 October 1995 |
Court | New York Supreme Court Appellate Division |
John Maier III, Fleischmanns, for appellants.
Patrick J. Cannon, Margaretville, for Livingston Baker and another, respondents.
Before MIKOLL, J.P., and CREW, WHITE, CASEY and YESAWICH, JJ.
Appeals (1) from an order of the Supreme Court (Mugglin, J.), entered February 16, 1994 in Delaware County, which, in a proceeding pursuant to CPLR article 78, inter alia, denied respondents' motion to dismiss the petition for failure to join a necessary party, and (2) from a judgment of said court, entered April 13, 1994 in Delaware County, which granted petitioners' application to, inter alia, annul a negative declaration issued with respect to respondent David R. Hadden's application for a junkyard license.
Petitioners are the owners of a stone house, allegedly of some historical significance, located in the Town of Roxbury, Delaware County, and respondent David R. Hadden is the owner of certain property located directly across the highway from petitioners' house. In July 1992, Hadden applied to respondent Town of Roxbury for a license to operate an automobile junkyard on his property. Petitioners opposed the application contending, inter alia, that both Hadden and the Town failed to comply with the requirements of the State Environmental Quality Review Act (ECL art. 8) (hereinafter SEQRA). By determination dated June 14, 1993, the Town issued a negative declaration and approved the issuance of the subject license to Hadden.
Thereafter, on October 14, 1993, petitioners commenced the instant proceeding against the Town and the individual members of the Town Board (hereinafter collectively referred to as the Town) seeking to annul the negative declaration and set aside the issuance of the junkyard license. The Town then moved to dismiss the petition pursuant to CPLR 3211(a)(10) for failure to join Hadden as a necessary party. By order entered February 16, 1994, Supreme Court denied the motion and ordered petitioners to join Hadden as a respondent.
In the interim, petitioners added Hadden as a respondent and served an amended petition on December 29, 1993. The Town subsequently moved to reargue the motion to dismiss, contending the Supreme Court erred in ordering joinder of Hadden following expiration of the four-month Statute of Limitations. 1 Supreme Court denied the motion and both the Town and Hadden answered the amended petition, raising the Statute of Limitations as an affirmative defense. Supreme Court thereafter granted the petition, finding that the Town had failed to comply with the applicable SEQRA requirements. These appeals by the Town followed.
Initially, we note that the appeal from Supreme Court's February 16, 1994 order must be dismissed because "no appeal lies as of right from an intermediate order in a CPLR article 78 proceeding" (Matter of Briar Hill Lanes v. Town of Ossining Zoning Bd. of Appeals, 142 A.D.2d 578, 579, 529 N.Y.S.2d 911; see, CPLR 5701[b][1] ). This procedural point need not detain us, however, as the appeal from the final judgment brings up for review the propriety of Supreme Court's intermediate order (see, CPLR 5501[a] ).
Turning to the substance of the appeal, we agree with the Town that Hadden indeed is a necessary party to this proceeding. CPLR 1001(a) provides, in relevant part, that a person is deemed to be a necessary party "if complete relief is to be accorded between the persons who are parties to the action or [those] who might be inequitably affected by a judgment" (see, Matter of Dawn Joy Fashions v. Commissioner of Labor of State of N.Y., 181 A.D.2d 968, 969, 581 N.Y.S.2d 464; Matter of Mount Pleasant Cottage School Union Free School Dist. v. Sobol, 163 A.D.2d 715, 716, 558 N.Y.S.2d 713, affd. 78 N.Y.2d 935, 573 N.Y.S.2d 639, 578 N.E.2d 437). As the owner of the subject property and the holder of the junkyard license, Hadden plainly would be adversely affected by annulment of the negative declaration or rescission of the license and, as such, falls squarely within the definition of a necessary party as set out in CPLR 1001(a).
To the extent that petitioners contend that joinder, not dismissal, is the appropriate remedy here, we disagree. As the Statute of Limitations expired prior to the time Hadden was joined, petitioners needed to demonstrate that...
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