Nicklin-McKay v. Town of Marlborough Planning Board

14 A.D.3d 858, 788 N.Y.S.2d 448, 2005 N.Y. App. Div. LEXIS 270
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJanuary 13, 2005
StatusPublished
Cited by8 cases

This text of 14 A.D.3d 858 (Nicklin-McKay v. Town of Marlborough Planning Board) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nicklin-McKay v. Town of Marlborough Planning Board, 14 A.D.3d 858, 788 N.Y.S.2d 448, 2005 N.Y. App. Div. LEXIS 270 (N.Y. Ct. App. 2005).

Opinion

Mugglin, J. Appeal from a judgment of the Supreme Court (Bradley, J.), entered October 9, 2003 in Ulster County, which dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Town of Marlborough Planning Board approving a preliminary subdivision plat.

[859]*859Respondents Joel Truncali and Frances Truncali (hereinafter collectively referred to as respondents) submitted a plan for the subdivision of their property in the Town of Marlborough, Ulster County, to respondent Town of Marlborough Planning Board. In this CPLR article 78 proceeding, petitioners challenge the issuance of a negative declaration of environmental significance issued by the Planning Board. On the return date of the petition, Supreme Court ruled that respondents had not been properly served and were thus not joined as respondents in this proceeding, and the entire proceeding must be dismissed as the statute of limitations had expired. Nevertheless, Supreme Court decided that had the proceeding been properly commenced, it would have to be dismissed for lack of merit.

We first address whether dismissal on statute of limitations grounds was proper. In this regard, respondents’ answer pleaded a second affirmative defense and objection in point of law in the following language: “The instant proceeding is time barred by the applicable thirty (30) day statute of limitations as aforesaid above, in that [petitioners have failed to obtain in personam jurisdiction over the [Respondents Joel Truncali and Frances E. Truncali under CPLR 308 (4) prior to the expiration of the applicable statute of limitations under [the State Environmental Quality Review Act], CPLR 306-b and [Town Law] § 282 . . . and the proceeding must fail for a failure to timely join [Respondents as necessary parties pursuant to CPLR 1001 (a).” Liberally construed, three affirmative defenses can be discerned from this language, statute of limitations, lack of in personam jurisdiction due to improper service of process and nonjoinder of necessary parties. The statute of limitations defense has no merit as respondents admit in their answer that petitioners timely commenced this proceeding by the filing of a notice of petition and petition in the Ulster County Clerk’s office within the 30-day statute of limitations found in Town Law § 282. Also, the nonjoinder of a necessary party argument is misplaced. Both Joel Truncali and Frances Truncali are named as respondents in the caption of the notice of petition and petition and their interest in this proceeding is detailed in the body of the petition. Moreover, they readily admit that they are the owners of the property and that Joel Truncali is the applicant seeking subdivision approval. Clearly, they were joined as respondents.

The real issue is respondents’ claim that petitioners had until March 22, 2002 to serve them and that they failed to make proper service on both under the “nail and mail” provisions of CPLR 308 (4). The basis for this claim is that petitioners’ process server affixed only one copy of the papers to the front door [860]*860of the residence and mailed an additional copy in an envelope addressed to respondents, thereafter mailing a second copy of the papers to only Joel Truncali. It appears from the affidavit of service that these mailings occurred within the time limits allowed by the statute. Nevertheless, apparently concerned that respondents had not both been properly served, petitioners’ process server returned to respondents’ residence several days thereafter, affixed another copy of the pleadings to the front door addressed to Frances Truncali and mailed another set of papers to her.

As Supreme Court correctly noted, to effect service upon persons who are husband and wife and who reside together, each person must be served (see McCormack v Gomez, 137 AD2d 504, 505 [1988]). Nevertheless, in his supporting affidavit, Joel Truncali acknowledges that he received the first posted set of papers and the subsequent mailing, making service upon him valid (see id. at 506). Under these circumstances, Supreme Court should have proceeded pursuant to the provisions of CPLR 306-b which, where service is untimely (in this proceeding the limit is 15 days), permits the court, upon motion, to either dismiss the proceeding without prejudice to that respondent or, upon good cause shown or in the interest of justice, extend the time for service. While motions in special proceedings are permissible, “the profusion of motion practice seen in actions has no counterpart in special proceedings for the very reason that the proceeding itself is analogous to a motion and is designed to go to hearing and determination promptly” (Siegel, NY Prac § 554, at 913 [3d ed]). As Supreme Court erroneously decided that dismissal was necessary for failure to join a necessary party, we could remit so that Supreme Court could exercise its discretion with respect to extending the time for service. In the interest of judicial economy, however, we will exercise our discretion and hold that service on Frances Truncali under CPLR 308 (4) was valid nunc pro tunc as of March 22, 2002, resulting in the court having, in personam jurisdiction over her as well as her husband. The basis for doing so is found in the court already having in personam jurisdiction over Joel Truncali, Frances Truncali’s interest being completely united with Joel Truncali in this proceeding, both of them having complete knowledge as to the issues involved and because there is no discernible prejudice to any party by so ruling. Thus, Supreme Court erred in dismissing the petition on this basis and we therefore reach the merits.

Petitioners contend that various procedural and substantive errors of the Planning Board concerning the requirements of the State Environmental Quality Review Act (see ECL art 8 [861]*861[hereinafter SEQRA]) require that the negative declaration be annulled. According to petitioners, the Planning Board’s procedural mistakes are (1) its failure to timely issue its determination, (2) its failure to automatically issue a positive determination due to an inaccuracy in the applicants’ environmental assessment form concerning the number of forested acres to be impacted by construction of the subdivision, and (3) its failure to automatically issue a positive declaration upon the identification of six potentially large impacts on the environment. We find each of these contentions unpersuasive. First, although the negative declaration was issued 853 days after submission of the application, no time limitation imposed by SEQRA has been violated. As a general proposition, the lead agency is required to determine the environmental significance of a proposed project within 20 days of its establishment as the lead agency or within 20 days after the receipt of all information reasonably necessary to render a determination (see 6 NYCRR 617.6 [b] [3] [ii]). However, this time limitation is directory only (see Matter of Seaboard Contr. & Material v Department of Envtl. Conservation of State of N.Y., 132 AD2d 105, 108 [1987]). In our view, the Planning Board, as the lead agency, painstakingly undertook to gather substantial data regarding the application, holding both public meetings and hearings in order to receive and consider evidence from all interested parties. Following the expiration of the deadline for submissions, the Planning Board issued the negative declaration at its next regularly scheduled meeting. Thus, we conclude that the declaration was not untimely.

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Cite This Page — Counsel Stack

Bluebook (online)
14 A.D.3d 858, 788 N.Y.S.2d 448, 2005 N.Y. App. Div. LEXIS 270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nicklin-mckay-v-town-of-marlborough-planning-board-nyappdiv-2005.