Opinion
324 CA 18–01246
07-31-2019
In the Matter of Kevin JANIGA, Marsha Janiga, Jason Wiepert, Lyndsay Romanchauk, Jeff Wesley and Chris Wesley, Petitioners–Appellants, v. TOWN OF WEST SENECA ZONING BOARD OF APPEALS, Marrano/Marc Equity, Inc., Nick Croglio and Vincent Croglio, Respondents–Respondents.
LIPPES & LIPPES, BUFFALO (RICHARD J. LIPPES OF COUNSEL), FOR PETITIONERS–APPELLANTS. JOHN J. FENZ, TOWN ATTORNEY, WEST SENECA, FOR RESPONDENT–RESPONDENT TOWN OF WEST SENECA ZONING BOARD OF APPEALS. COLUCCI & GALLAHER, P.C., BUFFALO (MARC S. SMITH OF COUNSEL), FOR RESPONDENT–RESPONDENT MARRANO/MARC EQUITY, INC. LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (FRANK J. JACOBSON OF COUNSEL), FOR RESPONDENTS–RESPONDENTS NICK CROGLIO AND VINCENT CROGLIO.
LIPPES & LIPPES, BUFFALO (RICHARD J. LIPPES OF COUNSEL), FOR PETITIONERS–APPELLANTS.
JOHN J. FENZ, TOWN ATTORNEY, WEST SENECA, FOR RESPONDENT–RESPONDENT TOWN OF WEST SENECA ZONING BOARD OF APPEALS.
COLUCCI & GALLAHER, P.C., BUFFALO (MARC S. SMITH OF COUNSEL), FOR RESPONDENT–RESPONDENT MARRANO/MARC EQUITY, INC.
LAW OFFICE OF RALPH C. LORIGO, WEST SENECA (FRANK J. JACOBSON OF COUNSEL), FOR RESPONDENTS–RESPONDENTS NICK CROGLIO AND VINCENT CROGLIO.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking to annul a determination of respondent Town of West Seneca Zoning Board of Appeals (ZBA), which interpreted the meaning of a required "buffer" area between petitioners' properties and a proposed subdivision adjoining them. Respondents Nick Croglio and Vincent Croglio moved to dismiss the petition against them on the grounds that petitioners failed to timely serve them with the notice of petition and the petition and also failed to join, as a necessary party, LNC Properties, LLC (LNC), which owned the subdivision at the time of the ZBA's determination. The ZBA and respondent Marrano/Marc Equity, Inc. (Marrano) each moved to dismiss the petition against them on the ground that petitioners failed to timely serve them with the notice of petition and the petition. Petitioners cross-moved for, inter alia, an extension of time to serve the ZBA, Marrano, and Nick Croglio and leave to file and serve an amended petition to join LNC as a respondent. Supreme Court denied petitioners' cross motion and granted respondents' respective motions to dismiss the petition, and petitioners appeal. As a preliminary matter, we note the court's failure to set forth its reasons for granting respondents' motions and denying petitioners' cross motion (see generally O'Hara v. Holiday Farm , 147 A.D.3d 1454, 1454, 46 N.Y.S.3d 382 [4th Dept. 2017] ).
As petitioners correctly concede, the ZBA, Marrano, and Nick Croglio were not timely served pursuant to CPLR 306–b, and we reject petitioners' contention that they demonstrated that the time for service should be extended for good cause shown or in the interest of justice. To establish good cause, " ‘reasonable diligence in attempting service must be shown’ " ( Hourie v. North Shore–Long Is. Jewish Health Sys., Inc.-Lenox Hill Hosp. , 150 A.D.3d 707, 708, 54 N.Y.S.3d 53 [2d Dept. 2017] ; see Vanyo v. Buffalo Police Benevolent Assn., Inc. , 159 A.D.3d 1448, 1449, 73 N.Y.S.3d 827 [4th Dept. 2018] ; Swaggard v. Dagonese , 132 A.D.3d 1395, 1396, 18 N.Y.S.3d 258 [4th Dept. 2015] ). Here, petitioners failed to show that any attempt to serve the ZBA, Marrano, or Nick Croglio was made during the applicable statutory period (see Valentin v. Zaltsman, 39 A.D.3d 852, 852, 835 N.Y.S.2d 298 [2d Dept. 2007] ).
" ‘[T]he interest of justice standard ... [is] a separate, broader and more flexible provision’ " ( Moss v. Bathurst , 87 A.D.3d 1373, 1374, 930 N.Y.S.2d 695 [4th Dept. 2011] ) that permits the court to take into account "diligence, or lack thereof, along with any other relevant factor ..., including expiration of the [s]tatute of [l]imitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of [the petitioners'] request for the extension of time, and prejudice to [the respondents]" ( Leader v. Maroney, Ponzini & Spencer , 97 N.Y.2d 95, 105–106, 736 N.Y.S.2d 291, 761 N.E.2d 1018 [2001] ; see Swaggard , 132 A.D.3d at 1396, 18 N.Y.S.3d 258 ). We note that petitioners here did not seek an extension until more than four months after the expiration of the service period and nearly three months after respondents moved to dismiss the petition. In addition, the statute of limitations had expired, and petitioners failed to demonstrate the meritorious nature of their claim. Those factors, considered as a whole, weigh against extending petitioners' time for service in the interest of justice. Thus, we conclude that the court properly denied the cross motion and granted the motions insofar as they sought dismissal of the petition as against the ZBA, Marrano, and Nick Croglio on the ground that they were not timely served.
Furthermore, inasmuch as the CPLR article 78 proceeding no longer includes the "body or officer" having made the determination sought to be annulled, the petition must be dismissed in its entirety ( CPLR 7802[a] ; see Matter of Emmett v. Town of Edmeston , 3 A.D.3d 816, 818, 771 N.Y.S.2d 568 [3d Dept. 2004], affd 2 N.Y.3d 817, 781 N.Y.S.2d 260, 814 N.E.2d 430 [2004] ; Matter of Tecler v. Lake George Park Commn. , 261 A.D.2d 690, 691, 689 N.Y.S.2d 540 [3d Dept. 1999], lv denied 94 N.Y.2d 751, 699 N.Y.S.2d 6, 721 N.E.2d 22 [1999] ; see generally CPLR 7802, 7803 ).
Finally, the issues whether LNC is a necessary party or united in interest with Nick Croglio are rendered academic by the dismissal of the petition.