Opinion
April 26, 1999
Appeal from the Supreme Court, Putnam County (Sweeny, J.).
Ordered that the order and judgment is affirmed insofar as appealed from, with one bill of costs.
The respondent Town of Carmel Zoning Board of Appeals (hereinafter the Board) granted the application of the intervenor-respondent, Mid Hudson Realty, Inc. (hereinafter Mid Hudson) for a use variance in a decision filed with the Town Clerk on October 20, 1997. Pursuant to Town Law § 267-c (1), the petitioners were required to commence this proceeding challenging the Board's determination within 30 days of the filing. On November 18, 1997, they delivered an unexecuted order to show cause and petition, memorandum of law, request for judicial intervention, and application for an index number to the Putnam County Clerk together with the filing fee. The order to show cause, however, was not signed until November 21, 1997, after the Statute of Limitations had expired. The Supreme Court granted the motion of the Board and its Chair, the respondent William Spain, joined in by Mid Hudson, to dismiss the proceeding as time-barred. We affirm.
The petitioners failed to satisfy the commencement-by-filing requirements of CPLR 304 when they delivered an unexecuted order to show cause to the Clerk (see, Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714). Consequently, this proceeding was not properly commenced prior to the expiration of the Statute of Limitations (see, Matter of Gershel v. Porr, 89 N.Y.2d 327; Bradley v. St. Clare's Hosp., 232 A.D.2d 814; Matter of Vetrone v. Mackin, 216 A.D.2d 839; CPLR 203 [c] [1]).
Altman, J. P., Goldstein, Florio and McGinity, JJ., concur.