Sullivan v. Planning Bd. of the Town of Mamakating

Decision Date29 June 2017
Parties In the Matter of Sherri SULLIVAN et al., Appellants, v. PLANNING BOARD OF the TOWN OF MAMAKATING et al., Respondents.
CourtNew York Supreme Court — Appellate Division

151 A.D.3d 1518
58 N.Y.S.3d 692

In the Matter of Sherri SULLIVAN et al., Appellants,
v.
PLANNING BOARD OF the TOWN OF MAMAKATING et al., Respondents.

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

June 29, 2017.


58 N.Y.S.3d 694

Alex Smith, Middletown, for appellants.

Jacobowitz & Gubits, Walden (John C. Cappello of counsel), for Planning Board of the Town of Mamakating, respondent.

Cuddy & Feder, LLP, White Plains (Andrew P. Schriever of counsel), for New Cingular Wireless PCS, LLC, respondent.

Collier & Berger, PLLC, Ellenville (William H. Collier of counsel), for Edward Hart, respondent.

Before: McCARTHY, J.P., EGAN JR., LYNCH, DEVINE and CLARK, JJ.

McCARTHY, J.P.

Appeal from a judgment of the Supreme Court (Meddaugh, J.), entered March 21, 2016 in Sullivan County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motions to dismiss the petition.

Respondent New Cingular Wireless PCS, LLC (hereinafter AT&T) applied to respondent Planning Board of the Town of Mamakating for a special use permit and site plan approval to construct a wireless telecommunication tower facility on an approximately 26–acre parcel of vacant land owned by respondent Edward Hart. Thereafter, the Planning Board issued a State Environmental Quality Review Act negative declaration and a resolution of approval granting AT&T's application. Petitioners commenced this CPLR article 78 proceeding against AT&T and the Planning Board seeking annulment of the declaration and resolution. Thereafter, AT&T and the Planning Board moved to dismiss the petition arguing, among other things, that petitioners failed to join a necessary party, Hart. Supreme Court determined that Hart was a necessary party (see CPLR 1001[a] ) and reserved decision on any remaining arguments pending his joinder. Petitioners then filed an amended notice of petition and verified amended petition adding Hart as a party and requesting the same relief sought in their original petition. Thereafter, Hart moved to dismiss the amended petition on statute of limitations grounds, AT&T again moved to dismiss on the same grounds as their original motion and the Planning Board joined both motions. Supreme Court granted Hart's motion to dismiss finding that Hart had been added as a respondent after the limitations period had expired and that petitioners were not entitled to the benefit of the relation back doctrine. The court then dismissed the amended petition as to AT&T and the Planning Board for petitioners' failure to timely join a necessary party. Petitioners...

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18 cases
  • Nemeth v. K-Tooling
    • United States
    • New York Supreme Court — Appellate Division
    • May 5, 2022
    ...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 fi......
  • Nemeth v. K-Tooling
    • United States
    • New York Supreme Court — Appellate Division
    • May 5, 2022
    ... ... been brought against him or her" (Matter of Sullivan ... v Planning Bd. of the Town of Mamakating, 151 A.D.3d ... ...
  • Burns v. Marcellus Lanes, Inc.
    • United States
    • New York Supreme Court
    • June 17, 2019
    ... ... ( Matter of Sullivan v Planninn Bd. of the Town of ... Mamakating, 151 A.D.3d 1518 ... ...
  • Burns v. Marcellus Lanes, Inc., 2019-34269
    • United States
    • New York Supreme Court
    • June 17, 2019
    ...identity, the [action] would have also been brought against him or her" (Matter of Sullivan v Planninn Bd. of the Town of Mamakating, 151 A.D.3d 1518. 1519-1520, 58 N.Y.S.3d 692 [2017] [citations omitted], lv denied 30 N.Y.3d 906.70 N.Y.S.3d 446, 93 NE3d 1211 [2017]). Plaintiffs foiled to e......
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