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In re Germain

Supreme Court of New York, Second Department

December 18, 2019

In the Matter of Leonard L. Germain, Jr., appellant,
v.
Town of Chester Planning Board, et al., respondents. Index No. 12/16

          Argued - October 4, 2019

         D61549 M/htr

          Sussman and Associates, Goshen, NY (Jonathan R. Goldman and Michael H. Sussman of counsel), for appellant.

          Dickover, Donnelly & Donovan, LLP, Goshen, NY (David A. Donovan of counsel), for respondent Town of Chester Planning Board.

          Drake Loeb PLLC, New Windsor, NY (Ralph L. Puglielle, Jr., of counsel), for respondent Primo Sports.

          LEONARD B. AUSTIN, J.P. COLLEEN D. DUFFY VALERIE BRATHWAITE NELSON LINDA CHRISTOPHER, JJ.

          DECISION & ORDER

         In a proceeding pursuant to CPLR article 78 to review a determination of the respondent 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 (1) an order of the Supreme Court, Orange County (Elaine Slobod, J.), dated May 8, 2018, and (2) a judgment of the same court dated October 29, 2018. The order granted the respondents' separate motions to dismiss the petition insofar as asserted against each of them. The judgment, upon the order, in effect, denied the petition and dismissed the proceeding.

         ORDERED that the appeal from the order is dismissed; and it is further, ORDERED that the judgment is affirmed; and it is further, ORDERED that one bill of costs is awarded to the respondents Town of Chester Planning Board and Primo Sports.

         The appeal from the intermediate order must be dismissed, since an order made in a CPLR article 78 proceeding is not appealable as of right (see CPLR 5701[b][1]), and any possibility of taking a direct appeal therefrom terminated with the entry of the judgment in the proceeding (see Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

         The respondent Primo Sports applied to the respondent Town of Chester Planning Board (hereinafter the Planning Board) for site plan approval allowing the construction of a sports complex on property owned by the respondent Chill Factor Cooling, LLC (hereinafter Chill Factor). The Planning Board granted the application. The petitioner commenced this CPLR article 78 proceeding against Primo Sports and the Planning Board, seeking annulment of the Planning Board's determination. Thereafter, Primo Sports and the Planning Board separately moved to dismiss the petition insofar as asserted against each of them on the ground that the petitioner failed to join Chill Factor, a necessary party. Subsequently, Chill Factor was joined as a respondent. The respondents then separately moved to dismiss the petition insofar as asserted against each of them on the ground that the statute of limitations had expired with respect to Chill Factor. The Supreme Court granted the motions and, in effect, denied the petition and dismissed the proceeding. The petitioner appeals.

         We agree with the Supreme Court's determination to grant dismissal of the petition for failure to timely join the landowner, Chill Factor (see Matter of Karmel v White Plains Common Council, 284 A.D.2d 464; Matter of Baker v Town of Roxbury, 220 A.D.2d 961). The applicable statute of limitations had expired with respect to Chill Factor, and the petitioner could have joined Chill Factor 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, 284 A.D.2d at 464). Contrary to the petitioner's contention, however, the relation-back doctrine does not apply here because Chill Factor was not united in interest with Primo Sports. The respective interests of Primo Sports and Chill Factor are not such that they "stand or fall together and that judgment against one will similarly affect the other" (Matter of Ferruggia v Zoning Bd. of Appeals of Town of Warwick, 5 A.D.3d 682, 683 [internal quotation marks omitted]; see Matter of Sullivan v Planning Bd. of the Town of Mamakating, 151 A.D.3d 1518).

         Moreover, the petitioner failed to demonstrate a mistake as to the identity of the proper party or parties at the time of the original pleading (see Matter of Ayuda Re Funding, LLC v Town of Liberty,121 A.D.3d 1474; Windy Ridge Farm v Assessor of Town of Shandaken,45 A.D.3d 1099, aff'd11 N.Y.3d 725). The petitioner's mistake was one of law, which is not the type of mistake contemplated by the ...


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