In the Matter of Leonard L. Germain, Jr., appellant,
Town of Chester Planning Board, et al., respondents. Index No. 12/16
- October 4, 2019
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
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
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.
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.
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]), 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]).
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
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).
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 ...