Burke v. O'Connor

53 Misc. 2d 159, 278 N.Y.S.2d 40, 1967 N.Y. Misc. LEXIS 1745

• Court: New York Supreme Court
• Decided: February 28, 1967
• Status: Published

Opinion

Matthew J. Jasen, J.

In this article 78 proceeding, petitioner seeks to review and annul a determination of the Zoning Board of Appeals in affirming the denial of a building permit.

The respondents appeared herein specially for the purpose of challenging the jurisdiction of this court, contending that the petitioner failed to comply with the provisions of CPLR 312 as to the service required on a board in order to properly commence this proceeding.

It is undisputed that service of the order to show cause was made on the Secretary of the Zoning Board of Appeals and on the Deputy Clerk of the Village of East Aurora who also is clerk of the said board.

The contention that CPLR 312 requires service on the chairman of the board cannot be sustained. The statute explicitly prescribed that “ Personal service upon a board or commission having a chairman or other presiding officer, secretary or clerk, by whatever official title he is called, may be made by delivering the summons to him ”.

Since service upon any one of the individuals enumerated is sufficient to comply with the statute, the petitioner is properly before the court.

Accordingly, the motion is denied and the matter is set down for argument before me on Monday, March 13,1967, at 10:00 a.m. in Part 10.