Ferrando v. New York City Board of Standards & Appeals

Appellate Division of the Supreme Court of New York

Ferrando v. New York City Board of Standards & Appeals

12 A.D.3d 287, 785 N.Y.S.2d 62, 2004 N.Y. App. Div. LEXIS 14168

Appellate Division of the Supreme Court of the State of New York·Decided November 23, 2004·Published·Cited by 4 cases

Opinion

Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about October 7, 2003, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 challenging respondent’s denial of petitioner’s appeal which had sought revocation of a certificate of occupancy, unanimously affirmed, without costs.

[288] Petitioner’s failure to join the owner of the premises for which the disputed certificate of occupancy was issued constituted a failure to join a necessary party (see Matter of Manupella v Troy City Zoning Bd. of Appeals, 272 AD2d 761 [2000]). Since the applicable statutory period has expired and the owner can no longer be joined, and proceeding in his absence would potentially be highly prejudicial to him, the proceeding was properly dismissed (see CPLR 1001, 1003). We note that, contrary to petitioner’s argument, the “relation back” doctrine has no application to this matter since, inter alia, it is evident that petitioner’s nonjoinder of the premises owner was deliberate and not attributable to an “excusable mistake” (see Buran v Coupal, 87 NY2d 173, 178 [1995]). Concur—Tom, J.P., Ellerin, Williams, Lerner and Catterson, JJ.

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Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about October 7, 2003, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 challenging respondent’s denial of petitioner’s appeal which had sought revocation of a certificate of occupancy, unanimously affirmed, without costs.

[288] Petitioner’s failure to join the owner of the premises for which the disputed certificate of occupancy was issued constituted a failure to join a necessary party (see Matter of Manupella v Troy City Zoning Bd. of Appeals, 272 AD2d 761 [2000]). Since the applicable statutory period has expired and the owner can no longer be joined, and proceeding in his absence would potentially be highly prejudicial to him, the proceeding was properly dismissed (see CPLR 1001, 1003). We note that, contrary to petitioner’s argument, the “relation back” doctrine has no application to this matter since, inter alia, it is evident that petitioner’s nonjoinder of the premises owner was deliberate and not attributable to an “excusable mistake” (see Buran v Coupal, 87 NY2d 173, 178 [1995]). Concur—Tom, J.P., Ellerin, Williams, Lerner and Catterson, JJ.

Ferrando v. New York City Board of Standards & Appeals, 12 A.D.3d 287, 785 N.Y.S.2d 62, 2004 N.Y. App. Div. LEXIS 14168 (N.Y. Ct. App. 2004).

Pincite

12 A.D.3d 287 (Ferrando v. New York City Board of Standards & Appeals) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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