Krenzer v. Town of Caledonia

• Decision Date: 29 August 1995
• Parties: Steven KRENZER et al., Petitioners, v. TOWN OF CALEDONIA Zoning Board of Appeals, Respondent.
• Court: New York Supreme Court

Page 927

634 N.Y.S.2d 927

167 Misc.2d 708

Steven KRENZER et al., Petitioners, v. TOWN OF CALEDONIA Zoning Board of Appeals, Respondent.

Supreme Court, Monroe County.

Aug. 29, 1995.

David H. Walsh, IV, Lacy, Katzen, Ryen & Mittleman, Rochester, for petitioners.

Peter Skivington, Jones & Skivington, Geneseo, for respondent.

Alan J. Knauf, Knauf, Craig & Doran, PC, Rochester, for Intervenors Richard and Barbara Pursel.

KENNETH R. FISHER, Justice.

In a petition verified June 21, 1995, petitioners request that the court annul the decision of the Town of Caledonia Zoning Board and that it reinstate their building permit. The parties agree that the statute of limitations expired on June 26, 1995. The order to show cause was signed by me on July 5, 1995. Respondent moves to dismiss the petition as time barred. Mr. and Mrs. Richard Pursel, and various other Caledonia residents who filed the successful zoning board appeal that is challenged in the petition, move to intervene as amicus curiae for the purpose of supporting the motion to dismiss.

The motion to dismiss calls into question the commencement-by-filing statute passed in 1992, and amended in 1994 to clarify that it applies to special proceedings. The motion to dismiss is supported by the decision in William Court-White Hill Road Homeowners Association v. New York State Commissioner of Mental Retardation and Developmental Disabilities, 161 Misc.2d 552, 613 N.Y.S.2d 322 (Sup.Ct. Westchester Co. 1994), which appears to be the closest case on point that the court can find in the post-commencement-by-filing period. For the following reasons, however, this court declines to follow that case, and holds that this action was timely commenced.

A. Background

The facts are undisputed. On Friday, June 23, 1995, at approximately 9:00 a.m., petitioner's attorney, David H. Walsh, IV, Esq., appeared at the office of the Livingston County Clerk and delivered a proposed order to show cause together with an attached CPLR Article 78 petition. Walsh realized that the statute of limitations was due to expire the following Monday, and therefore he appeared personally to deliver the papers to the Livingston County Clerk's office. When he presented the papers to the Clerk, Walsh purchased an Index Number as well as an RJI. Walsh then affixed the index number upon the proposed order to show cause and requested that the Clerk file the order to show cause and the attached Article 78 petition. He was given a receipt for the purchase of the Index Number which was time and date stamped June 23, 1995, 9:01 a.m. He also obtained a receipt for the RJI.

Upon leaving the County Clerk's office, and with the assurance that the proposed order to show cause and attached petition would be filed, Walsh went to the Supreme Court Assignment Clerk's office to make arrangements to have the order to show cause signed. Walsh was advised that Judge Meyer was on trial and that the papers would be presented to him for his signature during a break later that day. Walsh told "Barbara" at the Assignment Office that it was imperative that the order be signed immediately and that a signed copy be filed with the County Clerk. "Barbara" assured Walsh that it would be signed that day.

Thereafter, Walsh left to return to his Rochester, New York office. That afternoon, Walsh made several telephone calls to the Assignment Office to inquire of the status of the matter. He was evidently put off until someone ultimately told him that the order to show cause had not been signed, and that it would not be signed until the following Monday. Walsh again advised that it was imperative that the order be signed on Monday, because that was the last day permitted by the applicable limitations period. Walsh was told that he would be contacted as soon as the order was signed. On Monday, June 26, 1995, Walsh made several telephone calls to chambers inquiring of the status of the matter. He was advised finally that the order had not yet been signed.

On Tuesday, June 27, 1995, Walsh received a telephone call from a Supreme Court Assignment Clerk advising him that both judges in the County had recused themselves from the matter and that an outside judge would have to be located. Later that day, Walsh was told that the case had been referred to the undersigned, and that he should send a copy of the order to show cause to me for signature, because the County Clerk's office in Livingston County would retain the original. The Assignment Office further told Walsh that, when the order to show cause was signed, Walsh should notify the Assignment Office in Livingston County so that the Assignment Clerk could conform the original order to show cause and maintain it on file.

The order to show cause was signed by me on July 5, 1995. ¹ It directed that service be made on or before July 7, 1995, two days later. Actual service was effected, and is conceded, on July 5, 1995.

Jacqueline M. Thomas, Esq., Walsh's associate, swears in an affidavit, not challenged by respondent, that the Livingston County Clerk's office maintained a record of Walsh's purchase of an index number and RJI. Ms. Thomas was told, upon investigation of the matter, that the County Clerk's office would not "actually file" a proposed order to show cause and attached Article 78 petition until it was forwarded to the Supreme Court Assignment Clerk's office for delivery to the appropriate judge for signature. In Livingston County, once the order to show cause is signed by a judge, the Clerk ordinarily files the order and the petitioner's attorney is notified by telephone. Ms. Marge Davis of the Livingston County Clerk's office confirmed to Thomas that the order to show cause and Article 78 petition were received by the County Clerk on June 23, 1995, and that they were initially submitted to Judge Meyer. When Judge Meyer recused himself, the papers were presented to Judge Cicoria, who also recused himself. Nobody in the Livingston County Clerk's office recalled telling Walsh that the original papers were never actually "filed." See Affidavit of Jacqueline S. Thomas, Esq., sworn to July 17, 1995.

B. The Parties' Contentions

Acknowledging that the statute of limitations is 30 days, and that the 30th day fell on Sunday, June 25, 1995, and that the Article 78 proceeding needed to be commenced on or before June 26, 1995, N.Y. Town Law § 267-c; Code of the Town of Caledonia, § 130-105, petitioners contend that commencement occurred at approximately 9:00 a.m. on June 23, 1995, when Walsh personally delivered the proposed order to show cause and the attached Article 78 petition to the Livingston County Clerk's office staff. C.P.L.R. § 304 provides that "a special proceeding is commenced by filing a notice of petition or order to show cause and a petition with the clerk of the court in the county in which the special proceeding is brought." In the William Court-White Hill Road Homeowners Association case, it was held that the filing of a "putative order to show cause" (161 Misc.2d 552, 559, 613 N.Y.S.2d 322) has no effect under the new commencement-by-filing scheme. Id., 161 Misc.2d at 560, 613 N.Y.S.2d 322 ("the filing of an unexecuted, proposed order to show cause is meaningless"). Drawing upon pre-commencement-by-filing cases holding that service of a notice of petition without an appropriate return date is a jurisdictional defect, id., 161 Misc.2d at 558-59, 613 N.Y.S.2d 322 (collecting cases), and upon those cases holding that, under the new commencement-by-filing scheme, the summons served on the defendant must be exactly the same as the summons filed, id., 161 Misc.2d at 559, 613 N.Y.S.2d 322, the court held that the filing of a proposed order to show cause would not constitute commencement because the proposed order to show cause would not be exactly the same as the one ultimately signed by a judge containing a return date. The court observed that the petitioner "could have prepared a simple notice of petition and filed that with the County Clerk instead of the blank order to show cause," id., 161 Misc.2d at 559, 613 N.Y.S.2d 322, or in the circumstances of that case, petitioner could have requested that the court sign the order to show cause without the provision for temporary relief (which delayed court action beyond the statute of limitations), and thereafter seek a separate order to show cause sometime after commencement containing the temporary provisional relief. Id., 161 Misc.2d at 560, 613 N.Y.S.2d 322. In summary, the court concluded that the petitioner "must suffer the unintended consequences of the revenue-generation commencement-by-filing legislation." Id., 161 Misc.2d at 560, 613 N.Y.S.2d 322.

C. Discussion

The court does not agree with the analysis above, and finds that, in the circumstances of this case, commencement occurred on June 23, 1995, the date the proposed order to show cause and petition were delivered to the Livingston County Clerk's office. C.P.L.R. § 304 provides that "filing shall mean the delivery of the ... [petition and notice or order to show cause] to the clerk together with any fee required." See also, C.P.L.R. § 403. "Tender of these items to the Clerk should qualify as the filing even if the Clerk does not immediately assign an Index Number as required by C.P.L.R. § 306-a." (C.P.L.R. § 304; Alexander, 1992 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C304:1, 1995 Pocket Part, at 44.) The statute further requires that proof of service be filed in an Article 78 proceeding not later than 15 days after the date on which the applicable statute of limitations expires. C.P.L.R. § 306-b(a). In this case, service was actually effected on July 5th, well within the 15 day period. Respondent does not contend on this motion that proof of service was filed outside the 15 day period. ²

"As a result [of the 1992 amendments], service of process on the defendant no longer marks interposition of a claim for statute of...