Jacoby Real Prop., LLC v. Malcarne

• Decision Date: 06 June 2012
• Parties: In the Matter of JACOBY REAL PROPERTY, LLC, petitioner, v. Joseph MALCARNE, et al., respondents.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 747

946 N.Y.S.2d 190

2012 N.Y. Slip Op. 04340

In the Matter of JACOBY REAL PROPERTY, LLC, petitioner,

v.Joseph MALCARNE, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

June 6, 2012.

Lemery Greisler, LLC, Albany, N.Y. (Scott R. Almas of counsel), for petitioner.

Cappillino & Rothschild, LLP, Pawling, N.Y. (Donald Cappillino of counsel), for respondents Joseph Malcarne, John Calogero, Charles Canham, Norma Dolan, Macey Sherow III, Janine Arsenault, and Arther Weiland, constituting the Zoning Board of Appeals of the Town of Clinton, and Zoning Board of Appeals of the Town of Clinton.

Steven Habiague, Poughkeepsie, N.Y., for respondent Ernest Klopping.

DANIEL D. ANGIOLILLO, J.P., RANDALL T. ENG, PLUMMER E. LOTT, and LEONARD B. AUSTIN, JJ.

Proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Clinton dated September 23, 2010, which, after a hearing, determined that Ernest Klopping required an area variance rather than a use variance to eliminate the lot line on his real property, and granted the area variance.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with one bill of costs to the respondents appearing separately and filing separate briefs.

The Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804(g), since the determination to be reviewed was not made after a quasi trial-type hearing at which evidence was taken, held pursuant to direction of law ( seeCPLR 7803[4]; Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384, 633 N.Y.S.2d 259, 657 N.E.2d 254;Matter of Greencove Assoc., LLC v. Town Bd. of the Town of N. Hempstead, 87 A.D.3d 1066, 1067–1068, 929 N.Y.S.2d 325). Accordingly, the determination is not subject to substantial evidence review. Rather, the question before us is “whether the determination was affected by an error of law, or was arbitrary and capricious or an abuse of discretion, or was irrational” (Matter of Greencove Assoc., LLC v. Town Bd. of the Town of N. Hempstead, 87 A.D.3d at 1067, 929 N.Y.S.2d 325 [internal quotation marks omitted]; seeCPLR 7803[3]; Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 769–771, 809 N.Y.S.2d 98). Nevertheless, since the full administrative record is before us, in the interest of judicial economy, we will decide the proceeding on the merits ( see Matter of Haberman v. Zoning Bd. of Appeals of Town of E. Hampton, 85 A.D.3d 1170, 926 N.Y.S.2d 165;Matter of Navaretta v. Town of Oyster Bay, 72 A.D.3d 823, 824, 898 N.Y.S.2d 237;Matter of Zupa v. Board of Trustees of Town of Southold, 54 A.D.3d 957, 958, 864 N.Y.S.2d 142).

Edwin Jacoby and Mildred Jacoby (hereinafter together the Jacobys) owned real property next door to real property owned by Ernest Klopping. Klopping's property comprised two separate, adjacent lots. Klopping's father had owned a small repair shop, and, after his father's death, Klopping continued the repair business, which included a junkyard upon which he kept vehicles used for car parts for the business. In 1981 the Town of Clinton enacted its current zoning laws, and Klopping's repair business was grandfathered in as a preexisting, nonconforming use of the property.

Beginning in 2006, Klopping proposed building a 3200–square–foot barn-like structure on his property to house the cars stored in the junkyard. The Town of Clinton Zoning Board of Appeals (hereinafter the ZBA) determined in 2009 that the proposed building would constitute a reduction in the nonconforming use since it would eliminate the junkyard. From the time Klopping first proposed to erect the building, the Jacobys opposed the construction of the building.

On September 23, 2010, the ZBA determined that Klopping required an area variance rather than a use variance to eliminate the lot line on his property, and thereupon combine his two lots into a single parcel in order to build the structure, and, among other things, granted the area variance. Jacoby Real Property, LLC, a limited liability company formed and owned by the Jacobys, which currently has title to the Jacobys' real property (hereinafter the petitioner), commenced this proceeding to challenge that determination.

When the petitioner commenced this CPLR article 78 proceeding, it initially named only the ZBA and its members as respondents (hereinafter the ZBA respondents). Thereafter, Klopping's attorney contacted the petitioner, seeking an adjournment to allow Klopping to seek leave to intervene in the proceeding. The petitioner agreed to add Klopping as a named respondent, and served an amended petition. Klopping accepted service. Thereafter, the ZBA respondents and Klopping filed separate motions to dismiss the petition for failure to join a necessary party.

Exercising our power to review the procedural claims asserted by the ZBA respondents and Klopping ( seeCPLR 7804[g]; Matter of Wittie v. State of N.Y. Off. of Children & Family Servs., 55 A.D.3d 842, 866 N.Y.S.2d 692;Matter of Desmone v. Blum, 99 A.D.2d 170, 177, 473 N.Y.S.2d 196), we conclude that the Supreme Court properly denied the separate motions to dismiss the petition for failure to timely join Klopping as a necessary party. Klopping voluntarily participated in the proceeding by seeking leave to intervene, the petitioner agreed to amend the petition to add him as a named respondent, and Klopping agreed to accept service. Under these circumstances, joinder, rather than dismissal, was appropriate ( see generally Windy Ridge Farm v. Assessor of Town of Shandaken, 11 N.Y.3d 725, 864 N.Y.S.2d 794, 894 N.E.2d 1183;see Matter of Town of Preble v. Zagata, 250 A.D.2d 912, 672 N.Y.S.2d 510;Matter of Rent Stabilization Assn. of N.Y. City v. New York State Div. of Hous. & Community Renewal, 252 A.D.2d 111, 115, 681 N.Y.S.2d 679;compare Matter of Artrip v. Incorporated Vil. of Piermont, 267 A.D.2d 457, 700 N.Y.S.2d 844).

Contrary to the petitioner's contention, the ZBA's determination that Klopping...