Nemeth v. K-Tooling, 2022-03034

CourtNew York Supreme Court Appellate Division
Writing for the CourtClark, J.
PartiesIn the Matter of Joseph Nemeth et al., Appellants, v. K-Tooling et al., Respondents.
Docket Number2022-03034
Decision Date05 May 2022

In the Matter of Joseph Nemeth et al., Appellants,

K-Tooling et al., Respondents.

No. 2022-03034

Supreme Court of New York, Third Department

May 5, 2022

Calendar Date: February 15, 2022

Sussman & Associates, Goshen (Jonathan R. Goldman of counsel), for appellants.

Coughlin & Gerhart, LLP, Binghamton (Alan J. Pope of counsel), for respondents.

Before: Garry, P.J., Lynch, Clark and Fisher, JJ.; McShan, J., vouched in.

Clark, J.

Appeal from a judgment of the Supreme Court (Lambert, J.), entered August 12, 2020 in Delaware County, which, in a proceeding pursuant to CPLR article 78, among other things, granted respondents' cross motions to dismiss the amended petition.

The underlying facts are discussed at length in our prior decision in this proceeding (163 A.D.3d 1143 [2018]), as well as two other related proceedings (Matter of Nemeth v Village of Hancock Zoning Bd. of Appeals, 127 A.D.3d 1360 [2015]; Nemeth v K-Tooling, 100 A.D.3d 1271 [2012]). As relevant here, respondents Kuehn Manufacturing Co. and K-Tooling operate their respective manufacturing businesses from a residentially-zoned property. Rosa Kuehn owns that property and Kuehn Manufacturing Co., and her son, Perry Kuehn, owns K-Tooling. In 2013, respondents applied for and received a use variance for expansion of their nonconforming use, but petitioners, individuals who had purchased parcels adjacent to the operating manufacturing businesses, were ultimately successful in overturning that administrative determination (Matter of Nemeth v Village of Hancock Zoning Bd. of Appeals, 127 A.D.3d at 1361-1363). In 2016, respondents again applied for and received a use variance, prompting the instant CPLR article 78 proceeding in which petitioners failed to name Rosa Kuehn as a respondent. Upon motion, Supreme Court dismissed the petition for failure to join a necessary party. On appeal, this Court agreed that Rosa Kuehn was a necessary party but reversed and directed Supreme Court to order her summoned (163 A.D.3d at 1144-1145). On remittal, petitioners filed an amended petition adding Rosa Kuehn, in her personal capacity as a landowner, as a respondent, and they moved for a judgment thereon. Respondents cross-moved to dismiss the amended petition, arguing that petitioners' claims against Rosa Kuehn were time-barred and not saved by the relation back doctrine and that the claims against the remaining respondents in turn required dismissal for lack of a necessary party. Supreme Court agreed and dismissed the amended petition. Petitioners appeal, and we affirm.

Supreme Court correctly determined that petitioners are not entitled to the benefit of the relation back doctrine. That doctrine "permits a petitioner to amend a petition to add a respondent even though the statute of limitations has expired at the time of amendment so long as the petitioner can demonstrate three things: (1) that the claims arose out of the same occurrence, (2) that the later-added respondent is united in interest with a previously named respondent, and (3) that the later-added respondent knew or should have known that, but for a mistake by petitioners as to the later-added respondent's identity, the proceeding would have also been brought against him or her" (Matter of Sullivan v Planning Bd. of the Town of Mamakating, 151 A.D.3d 1518, 1519-1520 [2017], lv denied 30 N.Y.3d 906 [2017]; see CPLR 203; Buran v Coupal, 87 N.Y.2d 173, 178 [1995]).

It is not disputed that the first condition of the relation back doctrine was satisfied here. Even if the same were true for the second condition, petitioners simply cannot meet the third and final condition and therefore cannot avail themselves of the doctrine. Indeed, Rosa Kuehn was appropriately named as a respondent and identified as the landowner of the subject property in petitioners' successful challenge to the use variance issued in 2013 (Matter of Nemeth v Village of Hancock Zoning Bd. of Appeals, 127 A.D.3d at 1361-1362); "thus, this simply is not an instance where the identity of a respondent... was in doubt or there was some question regarding that party's status" (Matter of Baker v Town of Roxbury, 220 A.D.2d 961, 964 [1995], lv denied 87 N.Y.2d 807 [1996]; see Buran v Coupal, 87 N.Y.2d at 180 [holding that it is proper for courts to "reject() application of the (relation back) doctrine on the ground... that there was no 'mistake' - i.e., that (the) plaintiffs knew of the existence of the proper parties at the time of their initial filing"]; Wallach v R & J Constr. Corp., 128 A.D.3d 566, 566 [2015]; Mongardi v BJ's Wholesale Club, Inc., 45 A.D.3d 1149, 1151 [2007]). Under the established law of this state, any "mistake" here would "not [be one] contemplated by the relation back doctrine" (Matter of Sullivan v Planning Bd. of the Town of Mamakating, 151 A.D.3d at 1520; see Matter of Sullivan County Patrolmen's Benevolent Assn., Inc. v New York State Pub. Empl. Relations Bd., 179 A.D.3d 1270, 1271 [2020]; Branch v Community Coll. of the County of Sullivan, 148 A.D.3d 1410, 1411-1412 [2017], lv denied 29 N.Y.3d 911 [2017]; Matter of Ayuda Re Funding, LLC v Town of Liberty, 121 A.D.3d 1474, 1476 [2014]; Windy Ridge Farm v Assessor of Town of Shandaken, 45 A.D.3d 1099, 1099-1100 [2007], affd 11 N.Y.3d 725 [2008]).

Further, we decline petitioners' invitation to overturn the long-standing precedent of this state concerning the sorts of errors that may constitute a "mistake by petitioners as to [a] later-added respondent's identity" (Matter of Sullivan v Planning Bd. of the Town of Mamakating, 151 A.D.3d at 1519-1520; see Buran v Coupal, 87 N.Y.2d at 176; see generally Doe v HMO-CNY, 14 A.D.3d 102, 106 [4th Dept 2004]; Matter of 27th St. Block Assn. v Dormitory Auth. of State of N.Y., 302 A.D.2d 155, 165 [1st Dept 2002]; Somer & Wand v Rotondi, 251 A.D.2d 567, 569 [2d Dept 1998]; State of New York v Gruzen Partnership, 239 A.D.2d 735, 736 [3rd Dept 1997]). In petitioners' view, because our state's relation back test was largely premised upon Federal Rules of Civil Procedure rule 15 (c) (see generally Mondello v New York Blood Ctr.-Greater N.Y. Blood Program, 80 N.Y.2d 219, 226 [1992]; Brock v Bua, 83 A.D.2d 61, 68 [1981]), our approach to relation back must mirror the application of the federal rule, which, according to petitioners, would necessitate the conclusion that their error [1] was a mistake within the meaning of the doctrine and that they should therefore benefit from its application.

Initially, as highlighted by our dissenting colleague, it is true that the Court of Appeals, in Buran v Coupal (87 N.Y.2d 173 [1995]), looked to, among other sources, the text of the federal rule when eliminating this state's prior, superfluous requirement that a mistake as to a party's identity be "excusable" (id. at 179-180), and thereby more closely aligned this state's test with the text of the federal statute. However, Buran certainly did not do away with what is, in this state, a threshold requirement for relation back - that the petitioner/plaintiff made a mistake "as to the identity of the proper parties" (id. at 180). As noted above, the Court of Appeals has expressly acknowledged that there is no "mistake" within the meaning of relation back if the "[petitioners/]plaintiffs knew of the existence of the proper parties at the time of their initial filing" (id.). This is precisely the circumstance here; petitioners cannot claim either that they were unaware of Rosa Kuehn's identity as the owner of the subject property or that there was a question of or misunderstanding regarding her status.

In light of the points made by the dissent, we also find it important to note that there is far from one uniform interpretation of Federal Rules of Civil Procedure rule 15 (c) (1) (C), notwithstanding concerted effort to that end (see generally Krupski v Costa Crociere S. p. A., 560 U.S. 538, 546-554 [2010]). [2] One particularly notable construction includes that taken by courts in the Second Circuit, which have found that rule 15 (c) cannot apply at all where, as here, a petitioner/plaintiff seeks to add an additional respondent/defendant (an "additional party" case), as opposed to where the petitioner/plaintiff "changes the party or the naming of the party against whom a claim is asserted" (a "wrong party" case) (Fed Rules Civ Pro rule 15 [c] [1] [C]; see generally Ceara v Deacon, 916 F.3d 208, 212-213 [2d Cir...

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