Opinion
CA 02-01254
December 30, 2002.
Appeal from a judgment (denominated order) of Supreme Court, Monroe County (Siracuse, J.), entered October 30, 2001, which granted respondent's motion to dismiss the CPLR article 78 petition.
WILLIAMS WILLIAMS, ROCHESTER (MITCHELL T. WILLIAMS OF COUNSEL), FOR PETITIONER-APPELLANT.
DANIEL J. MASTRELLA, ROCHESTER, FOR RESPONDENT-RESPONDENT.
PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Petitioner commenced this CPLR article 78 proceeding seeking to annul respondent's resolution granting site plan approval to BRW of Greece, LLC (BRW). Supreme Court properly granted respondent's motion to dismiss the petition for failure to join BRW as a necessary party. BRW did not voluntarily appear or participate in the proceeding and petitioner failed to join BRW as a party within the applicable 30-day limitations period ( see Matter of Karmel v. White Plains Common Council, 284 A.D.2d 464, 465; Matter of Amodeo v. Town Bd. of Town of Marlborough, 249 A.D.2d 882, 884; see also Matter of Save the Woods Wetlands Assoc. v. Village of New Paltz Planning Bd., 296 A.D.2d 679; Matter of Saunders v. Graboski, 282 A.D.2d 610). Petitioner contends that BRW and respondent are united in interest and that the court therefore abused its discretion in refusing to allow the proceeding to proceed without BRW as a party ( see CPLR 1001 [b]). Even assuming, arguendo, that BRW and respondent are united in interest ( cf. Karmel, 284 A.D.2d at 465), we conclude that the court did not abuse its discretion pursuant to CPLR 1001(b) inasmuch as petitioner offered no excuse for failing to name BRW as a party in the first instance ( see Matter of Ogbunugafor v. New York State Educ. Dept., 279 A.D.2d 738, 740, lv denied 96 N.Y.2d 712; Matter of Baker v. Town of Roxbury, 220 A.D.2d 961, 963-964, lv denied 87 N.Y.2d 807).