State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 30, 2014 517959 

________________________________

In the Matter of AYUDA RE

FUNDING, LLC, et al.,

Appellants,

v

MEMORANDUM AND ORDER

TOWN OF LIBERTY et al.,

Respondents,

et al.,

Respondents.

________________________________

Calendar Date: September 3, 2014

Before: Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.

__________

Robert M. Cohen, Ballston Lake, for appellants.

Kenneth C. Klein, Jeffersonville, for Town of Liberty and

others, respondents.

Law Offices of Brian P. Rourke, PC, Liberty (John R.

Theadore of counsel), for Jon Sutherland and another,

respondents.

__________

Peters, P.J.

Appeal from a judgment of the Supreme Court (Cahill, J.),

entered March 4, 2013 in Sullivan County, which, in a proceeding

pursuant to CPLR article 78, granted respondents' motion to

dismiss the amended petition. 

In 2011, respondent Town of Liberty enacted Local Law No. 2

(2011), entitled "A Local Law Correcting Errors in the Zoning Map

With Respect to Tax Map Parcels 13.-1-7.1, 13.-1-7.2, 18.-1-31,
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18.-1-36.2, 20.-3-6 and 20.-3-8." Petitioners subsequently

commenced this proceeding seeking to annul such law, naming as

respondents the Town, respondent Gary Zalkin (doing business as

Liberty Scrap Metal) and respondent Ben Weitsman and Son, Inc.

(hereinafter collectively referred to as the original

respondents). The original respondents moved to dismiss the

petition on the ground that petitioners failed to name as

necessary parties the owners of the parcels of real property

affected by the zoning law. Supreme Court agreed and ordered

petitioners to file and serve an amended petition adding such

property owners as respondents.1 By the time the amended

petition adding these parties (hereinafter referred to as the

later-added respondents) was filed, the statute of limitations

had expired. Supreme Court dismissed the petition against the

later-added respondents on statute of limitation grounds and, as

a result thereof, dismissed the remainder of the petition against

the original respondents due to petitioners' failure to timely

join necessary parties. This appeal by petitioners ensued. 

As the statute of limitations had expired prior to the time

the later-added respondents were joined, dismissal of the

proceeding against them was warranted unless petitioners could

establish their entitlement to relief pursuant to the relation

back doctrine (see CPLR 203 [b]; Buran v Coupal, 87 NY2d 173, 177

[1995]). To avail themselves of the benefit of the doctrine,

petitioners were required to demonstrate (1) that the claims

arose out of the same occurrence, (2) that the later-added

respondents were united in interest with the original

respondents, and (3) that the later-added respondents knew or

should have known that, but for a mistake by petitioners as to

the identity of the proper parties, the proceeding would have

been brought against them as well (see Buran v Coupal, 87 NY2d at

178; Mongardi v BJ's Wholesale Club, Inc., 45 AD3d 1149, 1150

[2007]; De Sanna v Rockefeller Ctr., Inc., 9 AD3d 596, 597-598

[2004]). 

1 Petitioners did not appeal this judgment, and therefore

the issue as to whether the later-added respondents were

necessary parties is not before us.
-3- 517959 

Petitioners failed to establish the second and third prongs

of the doctrine. Unity of interest is demonstrated where "the

interest of the parties in the subject-matter is such that they

[will] stand or fall together and that judgment against one will

similarly affect the other" (De Sanna v Rockefeller Ctr., Inc., 9

AD3d at 598 [internal quotation marks and citations omitted]; see

Mondello v New York Blood Ctr.–Greater N.Y. Blood Program, 80

NY2d 219, 226 [1992]; Mongardi v BJ's Wholesale Club, Inc., 45

AD3d at 1151; Zehnick v Meadowbrook II Assoc., 20 AD3d 793, 796

[2005], lv dismissed 5 NY3d 873 [2005]). Here, the original

respondents consist of the municipality that enacted the zoning

law at issue and the entities that purportedly sought the zoning

changes, whereas the later-added respondents are the owners of

the real property affected by the zoning changes. Thus, it is

apparent that the original respondents do not have the same

interests in the zoning changes as the later-added respondents

(see Matter of Red Hook/Gowanus Chamber of Commerce v New York

City Bd. of Stds. & Appeals, 5 NY3d 452, 457 [2005]; Matter of

Emmett v Town of Edmeston, 2 NY3d 817, 818 [2004]; Matter of

Chalian v Malone, 307 AD2d 619, 621 [2003]). Nor can

petitioners' failure to name the later-added respondents in the

first instance be viewed as a mistake as to the identity of the

proper parties. In an affidavit submitted by petitioners'

counsel, he conceded that there were more parties that could have

been named in the proceeding, but that petitioners chose to name

the "most important" ones. As petitioners were fully aware of

the existence of these property owners but "failed to appreciate

that [they] were legally required to be named in proceedings of

this type," petitioners' error was not encompassed by the

doctrine (Windy Ridge Farm v Assessor of Town of Shandaken, 45

AD3d 1099, 1100 [2007], affd 11 NY3d 725 [2008]; see Buran v

Coupal, 87 NY2d at 181; Mongardi v BJ's Wholesale Club, Inc., 45

AD3d at 1151; State of New York v Gruzen Partnership, 239 AD2d

735, 736 [1997]; Matter of Baker v Town of Roxbury, 220 AD2d 961,

963-964 [1995], lv denied 87 NY2d 807 [1996]). 

Finally, inasmuch as the later-added respondents were

subject to Supreme Court's jurisdiction and raised a valid

statute of limitations defense, the court properly dismissed the

petition for failure to join necessary parties without

consideration of the discretionary factors set forth in CPLR 1001
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(b) (see Matter of Windy Ridge Farm v Assessor of Town of

Shandaken, 11 NY3d 725, 727 [2008]; Matter of Alexy v Otte, 58

AD3d 967, 967-968 [2009]; Matter of Romeo v New York State Dept.

of Educ., 41 AD3d 1102, 1104-1105 [2007]; see also Swezey v

Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 NY3d 543, 554 n 8

[2012]).

Lahtinen, Garry, Rose and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court