Leventhal v. Michaelis

• Decision Date: 12 July 1961
• Citation: 29 Misc.2d 831,219 N.Y.S.2d 508
• Parties: Application of Fred LEVENTHAL, Elaine Leventhal, Dolores Schatzel, Walter Schatzel, Arthur Blumenfeld, Jennie Blumenfeld, Helen Greco, Frank Licitra and Marie Licitra, Petitioners, for an an order pursuant to Article 78 of the Civil Practice Act, v. Walter G. MICHAELIS, W. Kenneth Chave, Charles B. Gregory, William Seiffert and Armand Granito, constituting the Board of Zoning Appeals, Town of Hempstead, County of Nassau, State of New York, Respondents.
• Court: New York Supreme Court

Page 508

219 N.Y.S.2d 508

29 Misc.2d 831

Application of Fred LEVENTHAL, Elaine Leventhal, Dolores

Schatzel, Walter Schatzel, Arthur Blumenfeld, Jennie

Blumenfeld, Helen Greco, Frank Licitra and Marie Licitra,

Petitioners, for an an order pursuant to Article 78 of the

Civil Practice Act, v. Walter G. MICHAELIS, W. Kenneth Chave, Charles B. Gregory, William Seiffert and Armand Granito, constituting the Board

of Zoning Appeals, Town of Hempstead, County of Nassau,

State of New York, Respondents.

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

July 12, 1961.

Tannenbaum & Goldweber, Jamaica, for petitioners.

John A. Morhous, Town Atty., Hempstead, for respondents. Robert M. Stein, Hempstead, of counsel.

BERNARD S. MEYER, Justice.

In this Article 78 proceeding the owners of residential properties seek to have annulled a decision of the Board of Zoning Appeals which granted an application, made pursuant to Article 12, Section Z-5.0(c)(4) of the Zoning Ordinance of the Town of Hempstead, for a special exception permitting the erection and operation of a storage warehouse on adjoining property zoned for business. Respondents move pursuant to Civil Practice Act, § 1293, to dismiss the petition on the ground that the court lacks jurisdiction over the subject matter. The basis of the motion is that the applicant, to which the permit was granted, has not been joined as a party, that such applicant is an indispensable party, and that more than thirty days having elapsed since the filing of the Board's decision, petitioners are barred from joining applicant as a party, wherefore the court is without jurisdiction. The motion to dismiss is denied.

Carruthers v. Jack Waite Mining Co., 306 N.Y. 136, 142, 116 N.E.2d 286, 289, establishes that '* * * nonjoinder of an indispensable party is not a ground for dismissal of a complaint in the first instance. Rather, the party complaining of the nonjoinder must initially move for the addition of such party, 'even though the ultimate relief granted upon such motion may be dismissal of the complaint * * * without prejudice' Twelfth Annual Report of N. Y. Judicial Council, 1946, pp. 189, 170-171; Wolff v. Brontown Realty Corp., 281 App.Div. 752, 118 N.Y.S.2d 74.'

Nor may an exception to the 'procedure clearly enunciated by the Legislature in sections 192 and 193 of the Civil Practice Act and as implemented by rule 102 of the Rules of Civil Practice' be created simply because the missing party is a nonresident and has refused to appear voluntarily, for that would 'constitute judicial legislation,' Carruthers v. Waite Mining Co., supra, 306 N.Y. p. 142, 116 N.E.2d p. 289. Respondents, nonetheless, urge, on the authority of Suthergreen v. Westall, 6 A.D.2d 1014, 178 N.Y.S.2d 546, 547, that a motion to dismiss is the proper procedure when 'the defect could not be cured after the time limited for the institution of the proceeding.' Matter of Suthergreen arose under Election Law, § 330, subd. 2, which requires that the proceeding 'be instituted within ten days of such primary election or convention'. While that language does not differ in substance from that of Town Law, § 267, subd. 7, applicable to this proceeding, that: 'Such proceeding * * * must be instituted * * * within thirty days after the filing of a decision in the office of the town clerk,' and both proceedings are accorded preference over other civil actions and proceedings (Town Law, § 267, subd. 9; Election Law, § 335), the court is unwilling, in the light of the clear holding of the Carruthers case, and of the statement in Third Annual Report of the Judicial Council, 1938, p. 187, on presentation of present Article 78 of the Civil Practice Act, that:

'It is deemed unnecessary, in view of C.P.A. section 192, to provide that the remedy in the event of a nonjoinder or misjoinder of parties is to move to require a correction of the defect, and not to move for a dismissal of the petition. See supra, p. 42',

to extend the rule of Matter of Suthergreen beyond election cases. Cf. Baum v. Van Keuren, 19 Misc.2d 92, 189 N.Y.S.2d 969.

Not only have respondents mistaken their remedy, they also have based their motion on erroneous premises. The first of these is that the applicant is an indispensable party. Neither statutory provision nor binding decisional precedent sustains the contention that the successful applicant for a special exception must be joined in the proceeding brought to review the Board of Zoning Appeals' decision, nor, it appears, do constitutional due process requirements mandate such joinder.

The statutes governing this proceeding are C.P.A. Article 78 and Town Law, § 267. Readily distinguishable, therefore, are declaratory judgment cases, such as Saso v. State of New York, 20 Misc.2d 826, 194 N.Y.S.2d 789, and Brechner v. Incorporated Village of Lake Success, 23 Misc.2d 159, 201 N.Y.S.2d 254, in which the joinder of the owner of the affected property has been ordered. Town Law, § 267 makes no direct provision concerning parties respondent, nor is there any legislative history of that provision (or of the corresponding provisions of Village Law, § 179-b and General City Law, § 82) that might help in deciding the question. With stated exceptions (Town Law, § 267), the proceeding is governed by C.P.A. Article 78. The only mandate in that Article concerning parties respondent is set forth in the last sentence of C.P.A. § 1290, which provides 'Where the proceeding is brought to restrain a body or officer exercising judicial or quasi-judicial functions from proceeding without or in excess of jurisdiction in favor of another party, the latter must of joined as a party respondent with the body or officer.'

Thus, it is only in the prohibition type of proceeding that a respondent other than the body or officer whose determination is to be reviewed must be joined. When such a respondent is joined, he is 'deemed the sole respondent in the proceeding,' C.P.A. § 1291. The legislative history of present Article 78 is helpful only in that it makes clear (Third Annual Report of the Judicial Council, 1938, pp. 185-186) that the quoted provisions were drawn from former §§ 1346 and 1348, which were part of former Article 80 dealing exclusively with prohibition proceedings. The statutory direction being limited to prohibition proceedings, and the only other provision touching upon parties being § 1298, which 'does not relate to the person to whom the writ shall be directed * * *, but allows the court, in its discretion, to admit a person as a party', People ex rel. New York C. R. R. Co. v. Block, 178 App.Div. 251, 253, 164 N.Y.S. 962, 963, appeal dismissed 221 N.Y. 652, 117 N.E. 1081, and which, as hereinafter demonstrated, gives Special Term discretion to require that notice be given to the successful applicant, it must be concluded that the draftsmen of the statute did not intend to require that a person in applicant's position be a party to a proceeding such as this. The provision of C.P.A. § 1299 making a bond given to procure a stay effectual 'in favor of a person beneficially interested in upholding the determination to be reviewed' only when such person 'is admitted as a party to the special proceeding' as prescribed in § 1298, substantiates that conclusion.

But, argue respondents, decisional precedent requires a holding that the successful applicant for a special exception permit is an indispensable party. It is not without significance that though the zoning system has been in existence in this state for more than three decades, the question, although it had been touched upon in Kohnberg v. Murdock, 10 Misc.2d 567, 569, 175 N.Y.S.2d 422, 425, affirmed 6 App.Div.2d 876, 177 N.Y.S.2d 1010, affirmed 6 N.Y.2d 937, 190 N.Y.S.2d 1005; and Cantelli v. Town Board of Town of Oyster Bay, Sup., 219 N.Y.S.2d 503, had not been decided up to the time this motion was argued. Since that time, in a decision with which this court agrees, Mr. Justice Pittoni has held in Zimmerman v. Kramer, Sup., 217 N.Y.S.2d 438, that such a successful applicant is not an indispensable party. In his opinion, Mr. Justice Pittoni cites appellate decisions in which either the landowner was not joined at all, or was not originally named, but later intervened, to show that in zoning cases the successful applicant has not been considered indispensable as a matter of New York decisional law.

Text authority and out-of-state zoning decisions can be found on both sides of the question. Taking the position that in a proceeding to review a decision of a zoning board granting a variance or special exception, the permittee is an indispensable party are: 101 C.J.S. Zoning § 352, p. 1183; 58 Am.Jur. 1073, Zoning § 253; 8 McQuillin, Minicipal Corporations 3d ed., Vol. 8, pp. 784, 787, Zoning § 25.318; and decisions of the courts of Connecticut (Shulman v. Zoning Board of Appeals, City of Hartford, 143 Conn. 182, 120 A.2d 550; Kuehne v. Town Council of Town of East Hartford, 136 Conn. 452, 72 A.2d 474; Devaney v. Board of Zoning Appeals, City of New Haven, 132 Conn. 218, 43 A.2d 304); Illinois (Winston v. Zoning Board of Appeals of Peoria County, 407 Ill. 588, 595, 95 N.E.2d 864 [but note that Illinois statute (Ill.Rev.Stat.1949, c. 110, § 271) requires that 'all persons, other than the plaintiff, who were parties of record to the proceedings before the administrative agency shall be made defendants']); Indiana (Noblitt v. Metropolitan Plan Commission, Ind.App., 172 N.E.2d 580; Noblitt v. Metropolitan Plan Commission Ind.App., 172 N.E.2d 583; McArdle v. Board of Zoning Appeals, City of Fort Wayne, Ind.App., 167 N.E.2d 608; Kupfer v. Board of Zoning Appeals of Indianapolis, Ind.App., 162 N.E.2d 110 [but note that both Burns' Ind.Stat. § 53-784 and the superseding provision, § 53-975, relied on in Kupfer, provide that 'The adverse party or parties shall be any property-owner whom the record of the board of zoning appeals shows to have appeared at the...