Janiga v. Town of W. Seneca Zoning Bd. of Appeals

• Decision Date: 31 July 2019
• Docket Number: CA 18–01246,324
• Parties: In the Matter of Kevin JANIGA, Marsha Janiga, Jason Wiepert, Lyndsay Romanchauk, Jeff Wesley and Chris Wesley, Petitioners–Appellants, v. TOWN OF WEST SENECA ZONING BOARD OF APPEALS, Marrano/Marc Equity, Inc., Nick Croglio and Vincent Croglio, Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 1401

106 N.Y.S.3d 465

In the Matter of Kevin JANIGA, Marsha Janiga, Jason Wiepert, Lyndsay Romanchauk, Jeff Wesley and Chris Wesley, Petitioners–Appellants,

v.TOWN OF WEST SENECA ZONING BOARD OF APPEALS, Marrano/Marc Equity, Inc., Nick Croglio and Vincent Croglio, Respondents–Respondents.

324

CA 18–01246

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

Entered: July 31, 2019

LIPPES & LIPPES, BUFFALO (RICHARD J. LIPPES OF COUNSEL), FOR PETITIONERS–APPELLANTS.

JOHN J. FENZ, TOWN ATTORNEY, WEST SENECA, FOR RESPONDENT–RESPONDENT TOWN OF WEST SENECA ZONING BOARD OF APPEALS.

COLUCCI & GALLAHER, P.C., BUFFALO (MARC S. SMITH OF COUNSEL), FOR RESPONDENT–RESPONDENT MARRANO/MARC EQUITY, INC.

LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (FRANK J. JACOBSON OF COUNSEL), FOR RESPONDENTS–RESPONDENTS NICK CROGLIO AND VINCENT CROGLIO.

PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking to annul a determination of respondent Town of West Seneca Zoning Board of Appeals (ZBA), which interpreted the meaning of a required "buffer" area between petitioners' properties and a proposed subdivision adjoining them. Respondents Nick Croglio and Vincent Croglio moved to dismiss the petition against them on the grounds that petitioners failed to timely serve them with the notice of petition and the petition and also failed to join, as a necessary party, LNC Properties, LLC (LNC), which owned the subdivision at the time of the ZBA's determination. The ZBA and respondent Marrano/Marc Equity, Inc. (Marrano) each moved to dismiss the petition against them on the ground that petitioners failed to timely serve them with the notice of petition and the petition. Petitioners cross-moved for, inter alia, an extension of time to serve the ZBA, Marrano, and Nick Croglio and leave to file and serve an amended petition to join LNC as a respondent. Supreme Court denied petitioners' cross motion and granted respondents' respective motions to dismiss the petition, and petitioners appeal. As a preliminary matter, we note the court's failure to set forth its reasons for granting respondents' motions and denying petitioners' cross motion (see generally O'Hara v. Holiday Farm , 147 A.D.3d 1454, 1454, 46 N.Y.S.3d 382 [4th Dept. 2017] ).

As petitioners correctly concede, the ZBA, Marrano, and Nick Croglio were not timely served pursuant to CPLR 306–b, and we reject petitioners' contention that they demonstrated that the time for service should be extended for good cause shown or in the interest of justice. To establish good cause, " ‘reasonable diligence in attempting service must be shown’ " ( Hourie v. North Shore–Long Is. Jewish Health Sys., Inc.-Lenox Hill Hosp. , 150 A.D.3d 707, 708, 54 N.Y.S.3d 53 [2d Dept. 2017] ; see Vanyo v. Buffalo Police Benevolent Assn., Inc. , 159 A.D.3d 1448, 1449, 73 N.Y.S.3d 827 [4th Dept. 2018] ; Swaggard v. Dagonese , 132 A.D.3d 1395, 1396, 18 N.Y.S.3d 258 [4th Dept. 2015] ). Here, petitioners failed to show that any attempt to serve the ZBA, Marrano, or Nick Croglio was made during the applicable statutory period (see Valentin v. Zaltsman, 39 A.D.3d 852, 852, 835 N.Y.S.2d 298 [2d Dept. 2007] ).

" ‘[T]he interest of justice standard ... [is] a separate, broader and more flexible provision’ " ( Moss v. Bathurst , 87 A.D.3d 1373, 1374, 930 N.Y.S.2d 695 [4th Dept. 2011] ) that permits the court to take into account "diligence, or lack thereof, along with any other relevant factor ..., including expiration of the [s]tatute of [l]imitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of [the petitioners'] request for the extension of time, and prejudice to [the respondents]" ( Leader v. Maroney, Ponzini & Spencer , 97 N.Y.2d 95, 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001] ; see Swaggard , 132 A.D.3d at 1396, 18 N.Y.S.3d 258 ). We note that petitioners here did not seek an extension until more than four months after the expiration of the service period and nearly three months after respondents moved...