Opinion
May 27, 1988
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Doerr, J.P., Denman, Green, Lawton, and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Special Term erred in dismissing, sua sponte, petitioner's original CPLR article 78 petition against the Town of Gaines on the ground that it was not timely served. The petition was served within the time period stipulated by the parties and, in any event, the town waived the affirmative defense of the Statute of Limitations by not pleading it (see, CPLR 3018 [b]; 7804 [f]; Baltimore Ohio R.R. Co. v County of Genesee, 112 A.D.2d 725, appeal dismissed 66 N.Y.2d 759; Matter of McGregor v Town of Hastings, 62 A.D.2d 1178).
The original petition should have been dismissed in part, however, for failure to name the Town Planning Board as a necessary party with respect to petitioner's claim that the Planning Board's denial of petitioner's application for a special permit was arbitrary and capricious. Under the town's zoning ordinance, only the Planning Board may grant or deny such a permit. Thus, the Planning Board is a necessary party if the denial of petitioner's application is to be reviewed (see, CPLR 1001 [a]; Matter of Commco, Inc. v Amelkin, 62 N.Y.2d 260, 263; Phillips v Village of Oriskany, 57 A.D.2d 110, 113; Matter of D.J.R. Dev. Corp. v Town Bd., 47 A.D.2d 986, 987).
Petitioner's remaining claims alleged in the original petition (denominated arguments 1, 2, 3 and 5) which challenge the zoning ordinance on various grounds should not be dismissed because with respect to these claims the town is the proper party and was timely served (see, Matter of Wohl v Miller, 63 N.Y.2d 687, 688; D.B.C.G., Inc. v Town of Ramapo, 97 A.D.2d 533).
The amended petition was properly dismissed because it was served beyond the stipulated extension period, and respondent properly raised the affirmative defense of the Statute of Limitations in its amended answer. Moreover, the applicable 30-day limitation period (see, Town Law § 274-a; § 282) was not tolled since the town and the Town Planning Board are not united in interest (see, CPLR 203 [b] [1]; Prudential Ins. Co. v Stone, 270 N.Y. 154, 159; Gagliardi v New York City Hous. Auth., 88 A.D.2d 610, 611; Connell v Hayden, 83 A.D.2d 30, 41).