Opinion
November 24, 1986
Appeal from the Supreme Court, Westchester County (Dachenhausen, J.).
Ordered that the judgment is reversed, without costs or disbursements, and the motion is denied.
The uncontroverted evidence adduced at the hearing reveals that on May 17, 1985, the last day upon which the instant proceeding could be timely commenced by the petitioners, the board's acting chairman met the attorney for the petitioners at a real estate closing. After the acting chairman requested service of the petition, the petitioners' attorney suggested that service be made upon the Corporation Counsel's office, which represents the board in legal matters. The chairman indicated that this method of service would be acceptable, stating "[t]hat's fine with me. I would prefer that you served them and not serve me". Based upon this statement, the attorney for the petitioners delivered the petition to an Assistant Corporation Counsel who accepted service. The board subsequently moved to dismiss the petition for lack of personal jurisdiction, and the Supreme Court, Westchester County, granted the motion. We now reverse.
While we agree with the hearing court that service was not made in accordance with the requirements of CPLR 312 (see, e.g., Matter of Heinisch v Geohringer, 121 A.D.2d 721; Matter of Sengstacken v Zoning Bd. of Appeals, 87 A.D.2d 651; Matter of Beck v Goodday, 24 A.D.2d 1016), we find that the statements made by the acting chairman to the petitioners' attorney establishes that he, a proper person to be served (CPLR 312), expressly consented to the method of service employed (see, Roa v Westchester County Playland Commn., 34 A.D.2d 818, affd 28 N.Y.2d 873). Hence it would be manifestly unfair to dismiss the petition for lack of jurisdiction under these circumstances. Mollen, P.J., Brown, Weinstein and Rubin, JJ., concur.