Opinion
107396/08.
April 15, 2009.
The following papers, numbered 1 to were read on this motion to/for
PAPERS NUMBERED Notice of Motion/ Order to Show Cause — Affidavits — Exhibits Answering Affidavits — Exhibits Replying AffidavitsCross-Motion: [] Yes [X] No
In this Article 78 proceeding, Mark Schulte ("Schulte"), a tenant of Apartment 3-F, at 910 West End Avenue ("the Building") challenges the determination of New York State Division of Housing and Community Renewal (DHCR) denying his petition for administrative review (PAR) in connection with the grant of a major capital improvement ("MCI") application to the Building's owner 910 West End Avenue Realty, LLC (hereinafter "the owner") for facade restoration, roof and fire door installation (motion seq. no. 001). DHCR opposes the petition and cross moves to dismiss it for failure to name it as a party respondent, and on the ground that the applicable 60-day statute of limitations (motion seq. no. 002). Schulte subsequently filed two amended notices of petition (motion seq. no. 003 004), the second of which named DHCR as a respondent.
Motion seq. 001, 002, 003 004 have been consolidated for disposition.
The PAR that is subject of this Article 78 proceeding was decided by DHCR on March 28, 2008. Schulte commenced this proceeding on May 28, 2008, just prior to the expiration of the 60-day statute of limitation. The notice of petition and petition were served personally on DHCR on June 16, 2008, but DHCR rejected the papers since it was not named as party in the caption or identified as a party in the petition On July 1, 2008, DHCR moved to dismiss the petition for failing to name it as a party respondent. The owner submitted an affirmation in support of DHCR's dismissal motion and further argued that the petition should be dismissed since Schulte incorrectly named the owner as the petitioner and also erroneously named "Various Tenants of 910 West End" as the respondents.
DHCR points out that it was served more than 15 days after commencement of the proceeding and thus service was untimely under CPLR 306-b. The court need not reach the issue of whether Schulte should be granted an extension of the time to serve DHCR under 306-b since, as set forth below, the notice of petition and petition did not name DHCR as a party.
Schulte opposed DHCR's motion to dismiss and filed and served an amended notice of petition and petition on July 10, 2008, which named DHCR as a party respondent, and also corrected the caption so as to properly identify Schulte as the petitioner and the owner and DHCR as respondents.
Schulte also filed and served another amended notice of petition and petition (motion seq. no. 003) on June 28, 2008, which appear to be identical to the notice of petition and petition filed on March 28, 2008.
In accordance with CPLR 401, after a special proceeding is commenced, "no party shall be joined . . . except with leave of court." See generally, Barrett v. Dutchess County Legislature, 38 AD3d 651 (2d Dept 2007). Here, while Schulte added DHCR as a party without seeking prior permission, he later sought such leave, and there is no dispute that DHCR is a proper respondent to this proceeding. At issue, however, is whether DHCR can be added as a party after the expiration of the 60-day statute of limitations. See § 26-516(d) of the Administrative Code of the City of New York; 9 NYCRR 2530.1.
A party cannot be added after the expiration of the statute of limitations period unless the claims against it relate back to the claims of the timely joined party. See CPLR 203(b). For the relation back doctrine to apply, it must be shown that there is a '"unity of interest' between the party in the proceeding and the non-party." Emmett v, Town of Edmeston, 2 NY3d 817, 817 (2004), citing, Mondello v. New York Blood Center-Greater New York Blood Program, 80 NY2d 219, 226 (1992). To demonstrate that two parties are united in interest, it must be shown that the non-party by reason of its relationship with the original party "can be charged with notice of the institution of the [proceeding] and that [it] will not be prejudiced from [its] defense on the merits." Buran v. Coupal, 87 NY2d 173, 178 (1995). Parties have been held to be united in interest when their interest in "the subject matter is such that they stand or fall together and that judgment against one will similarly affect the other." Mondello v. New York Blood Center, 80 NY2d at 226 (internal citation and quotation omitted).
Here, while the owner and the DHCR both have an interest in opposing the Article 78 proceeding insofar as they both seek to maintain the decision on the PAR with respect to the MCI increase, this does not give rise to a unity of interest such that the proceeding against the DHCR relates back to the timely filing of the notice of petition and petition against the owner. Specifically, the owner's interest is in maintaining its MCI increase, while the DHCR's interest is concerned with the effect a reversal on the determination would have on its administrative authority. See e.g., Red Hook/Gowanus Chamber of Commerce v. New York City Board of Standards and Appeals, 5 NY3d 452, 457 (2005) (holding that real estate developer and city did not have a unity of interest in an Article 78 proceeding challenging the city's grant of a hardship variance to developer since developer was interested in the potential loss of millions of dollars while the city was concerned with regulatory and administrative consequences); Emmett v. Town of Edmeston, 2 NY3d at 817 (holding that the Zoning Board of Appeals (ZBA) and named respondent, the Town of Edmeston, were not unified in interest since the town and the ZBA are "independent of each other").
Moreover, while DHCR was served with the original notice of petition and petition which failed to name it as a party, and the DHCR's role in the matter could be discerned from these papers, contrary to Schulte's position, these facts do not provide a basis for permitting DHCR to be joined as a party after the expiration of the statute of limitations period. A similar position was taken by the dissent in Emmett v. Town of Edmeston, 3 AD3d 816, 819-920 (3d Dept 2004), Specifically, Justice Carpinello dissented from the majority's conclusion that the failure to join the Zoning Board of Appeals ('ZBA"), which was a necessary party, warranted the dismissal of an Article 78 proceeding challenging the ZBA's issuance of a variance, pointing out that the ZBA had notice of the underlying proceeding since the petition "specifically referenced ZBA no less than 21 times," and that the notice of petition and petition were served on the Town Clerk, who was authorized to accept service on behalf of the ZBA. However, in affirming the majority opinion, the Court of Appeals implicitly rejected the dissent's position. Emmett v. Town of Edmeston, 2 NY3d at 817. Under these circumstances, the court is constrained to find that Schulte's claims against the DHCR are barred by the statute of limitations.
The remaining issue is whether DHCR is a necessary party to the proceeding such that it must be dismissed. In determining whether a proceeding can go forward in the absence of a necessary party the court considers "(1) whether the plaintiff has another effective remedy in case the action is dismissed on account of non-joinder; (2) the prejudice which may accrue from non-joinder to the defendant or to the person not joined; (3) whether and by whom prejudice might have been avoided or may in the future be avoided; (4) the feasibility of a protective provision by order of the court or in the judgment; and (5) whether an effective judgment may be rendered in the absence of the person who not joined."Red Hook/Gowanus Chamber of Commerce v. New York City Board of Standards and Appeals, 5 NY3d at 458; CPLR 1001 (b).
After applying these factors to the circumstance of the instant case, the court finds that this case cannot proceed without joining DHCR as a party, and thus the proceeding must be dismissed. First, DHCR will be prejudiced if the proceeding challenging its determination goes forward without it and, significantly, an effective judgment cannot be rendered in the absence of DHCR as a party. In addition, there is no feasible way to avoid this prejudice through a protective provision in any order or judgment. Moreover, while Schulte arguably will not have an effective remedy if the case is dismissed, this prejudice could have been avoided if it had timely commenced the proceeding against DHCR. See generally, Jeanty v. New York State Department of Correctional Services, 36 AD3d 811 (2d Dept 2007) (holding that New York State Division of Human Rights was a necessary party to an Article 78 proceeding challenging its determination that the respondent employer had not discriminated against the petitioner); 82 NY Jur2d Parties § 106 ("where a government entity will be directly affected by the litigation in question, its joinder as a necessary party will be required").
At oral argument, it was mentioned that Schulte could bring a plenary action seeking the repairs to his apartment which during the administrative proceeding he raised as a basis for denying the owner's application for an MCI increase,
Accordingly, based on the failure to timely join DHCR as a party, the petition must be dismissed.
In view of the above, it is
ORDERED that DHCR's motion to dismiss is granted; and it is further
ORDERED and ADJUDGED that the petition is denied and dismissed.