Opinion
2003-02118.
Decided March 22, 2004.
In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Town of Warwick, dated October 28, 2002, which, inter alia, granted variances with respect to real property owned by John E. White and Dorothy M. Parietti and of which the respondent Steven Sullivan was the contract vendee, the petitioners appeal from an order and judgment (one paper) of the Supreme Court, Orange County (Owen, J.), dated January 28, 2003, which upon granting the respondents' separate motions to dismiss the proceeding for failure to join necessary parties, dismissed the proceeding.
Stephen R. Hunter, Goshen, N.Y., for appellants.
Robert W. Fink, Goshen, N.Y., for respondent Zoning Board of Appeals of the Town of Warwick.
Jacobowitz and Gubits, LLP, Walden, N.Y. (Donald G. Nichol of counsel; Raymond N. Pomeroy on the brief), for respondent Steven Sullivan.
Before: NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, WILLIAM F. MASTRO, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order and judgment is affirmed, with one bill of costs.
The Supreme Court properly dismissed the proceeding for failure to timely join the landowners as necessary parties ( see Matter of Long Is. Pine Barrens Socy. v. Town of Islip, 286 A.D.2d 683; Matter of Karmel v. White Plains Common Council, 284 A.D.2d 464, 465; Manupella v. Troy City Zoning Bd. of Appeals, 272 A.D.2d 761; Matter of Artrip v. Incorporated Vil. of Piermont, 267 A.D.2d 457; see also Matter of Saunders v. Graboski, 282 A.D.2d 610; Matter of Save Our-Open Space v. Planning Bd. Of Vil. of S. Nyack, 256 A.D.2d 581, 582). The applicable statute of limitations had expired and the petitioners could have joined the landowners only if the relation-back doctrine applied ( see Buran v. Coupal, 87 N.Y.2d 173, 178; Matter of Karmel v. White Plains Common Council, supra; Matter of Artrip v. Incorporated Vil. of Piermont, supra). Contrary to the petitioners' contention, however, the relation-back doctrine does not apply to this case because the landowners are not united in interest with the respondent Steven Sullivan. Their respective interests are not such that "they stand or fall together and that judgment against one will similarly affect the other" ( Mondello v. New York Blood Ctr.-Greater N.Y. Blood Program, 80 N.Y.2d 219, 226; Prudential Ins. Co. v. Stone, 270 N.Y. 154, 159; Matter of Karmel v. White Plains Common Council, supra at 465; see Matter of Artrip v. Incorporated Vil. of Piermont, supra). Additionally, the petitioners failed to demonstrate a mistake as to the identity of the proper party or parties at the time of the original pleading ( see Debra S. Bereck, P.C. v. Hamza, 299 A.D.2d 516; Ramos v. Cilluffo, 276 A.D.2d 475, 476; Matter of Brucha Mtge. Bankers Corp. v. Commissioner of Labor of State of N.Y., 266 A.D.2d 211; Somer Wand v. Rotondi, 251 A.D.2d 567). The petitioners' mistake was one of law, which is not the type of mistake contemplated by the relation-back doctrine ( see Brucha Mtge. Bankers Corp. v. Commissioner of Labor of State of N.Y., supra; Somer Wand v. Rotondi, supra).
In light of our determination, Sullivan's remaining contention regarding laches has been rendered academic.
SMITH, J.P., GOLDSTEIN, MASTRO and RIVERA, JJ., concur.