Opinion
2016–08088 Index No. 12/16
12-06-2017
In the Matter of Leonard L. GERMAIN, Jr., appellant, v. TOWN OF CHESTER PLANNING BOARD, respondent-respondent, et al., respondent.
Sussman and Associates, Goshen, N.Y. (Jonathan R. Goldman and Michael H. Sussman of counsel), for appellant. Dickover, Donnelly & Donovan, LLP, Goshen, N.Y. (David A. Donovan of counsel), for respondent-respondent. Drake Loeb, PLLC, New Windsor, N.Y. (Ralph L. Puglielle, Jr., of counsel), for respondent.
Sussman and Associates, Goshen, N.Y. (Jonathan R. Goldman and Michael H. Sussman of counsel), for appellant.
Dickover, Donnelly & Donovan, LLP, Goshen, N.Y. (David A. Donovan of counsel), for respondent-respondent.
Drake Loeb, PLLC, New Windsor, N.Y. (Ralph L. Puglielle, Jr., of counsel), for respondent.
MARK C. DILLON, J.P., JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In a proceeding pursuant to CPLR article 78 to review a determination of the Town of Chester Planning Board dated December 2, 2015, granting the application of the respondent Primo Sports for site plan approval of the subject property, the petitioner appeals from an order of the Supreme Court, Orange County (G. Walsh, J.), dated April 1, 2016, which granted the motion of the respondent Town of Chester Planning Board to dismiss the petition insofar as asserted against it for failure to join a necessary party.
ORDERED that on the Court's own motion, the notice of appeal is deemed to be an application for leave to appeal from the order, and leave to appeal is granted (see CPLR 5701[b][1] ; [c] ); and it is further,
ORDERED that the order is reversed, on the law, without costs or disbursements, the motion of the respondent Town of Chester Planning Board to dismiss the petition insofar as asserted against it for failure to join a necessary party is denied, and the matter is remitted to the Supreme Court, Orange County, for the joinder of Chill Factor Cooling, LLC, as a respondent in this proceeding, without prejudice to its right to assert any defenses or affirmative defenses, for the service of the notice of petition and petition by the petitioner upon Chill Factor Cooling, LLC, within 30 days after service upon the petitioner of a copy of this decision and order, for the service by Chill Factor Cooling, LLC, of an answer or motion directed to the petition, and for further proceedings thereafter.
Chill Factor Cooling, LLC (hereinafter Chill Factor), is a necessary party to this proceeding (see CPLR 1001[a] ; Matter of Cybul v. Village of Scarsdale, 17 A.D.3d 462, 463, 792 N.Y.S.2d 349 ; Matter of Karmel v. White Plains Common Council, 284 A.D.2d 464, 465, 726 N.Y.S.2d 692 ; Matter of Artrip v. Incorporated Vil. of Piermont, 267 A.D.2d 457, 457, 700 N.Y.S.2d 844 ) subject to the jurisdiction of the court, and therefore, the Supreme Court should have "order[ed][it] summoned," rather than granting the motion of the Town of Chester Planning Board to dismiss the petition insofar as asserted against it ( CPLR 1001[b] ; see Windy Ridge Farm v. Assessor of Town of Shandaken, 11 N.Y.3d 725, 727, 864 N.Y.S.2d 794, 894 N.E.2d 1183 ; Matter of Jenkins v. Astorino, 110 A.D.3d 882, 885, 972 N.Y.S.2d 688 ; Matter of Mega Sound & Light, LLC v. Commissioner of Labor, 99 A.D.3d 800, 800, 952 N.Y.S.2d 210 ; Matter of Lazzari v. Town of Eastchester, 62 A.D.3d 1002, 1002–1003, 878 N.Y.S.2d 904 ; see also Matter of Greens at Half Hollow, LLC v. Suffolk County Dept. of Pub. Works, 147 A.D.3d 942, 943–944 ). Accordingly, we reverse the order and remit the matter to the Supreme Court, Orange County, for further proceedings (see Matter of Mega Sound & Light, LLC v. Commissioner of Labor, 99 A.D.3d at 800, 952 N.Y.S.2d 210 ; Matter of Lazzari v. Town of Eastchester, 62 A.D.3d at 1002–1003, 878 N.Y.S.2d 904 ).
DILLON, J.P., COHEN, CONNOLLY and CHRISTOPHER, JJ., concur