Stenger v. Town of Carmel Zoning Board of Appeals

Appellate Division of the Supreme Court of New York

Stenger v. Town of Carmel Zoning Board of Appeals

260 A.D.2d 641, 688 N.Y.S.2d 689, 1999 N.Y. App. Div. LEXIS 4334

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 26, 1999

StatusPublished

Cited by1 cases

This text of 260 A.D.2d 641 (Stenger v. Town of Carmel Zoning Board of Appeals) 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

Stenger v. Town of Carmel Zoning Board of Appeals, 260 A.D.2d 641, 688 N.Y.S.2d 689, 1999 N.Y. App. Div. LEXIS 4334 (N.Y. Ct. App. 1999).

Pincite

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Town of Carmel Zoning Board of Appeals, filed October 20, 1997, which granted the intervenor-respondent, Mid Hudson Realty, Inc., a use variance, the petitioners appeal from so much of an order and judgment (one paper) of the Supreme Court, Putnam County (Sweeny, J.), dated March 13, 1998, as granted the motion of the respondents, in which the intervenor-respondent joined, to dismiss the proceeding as time-barred, and dismissed the proceeding.

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 [642]*642order to show cause to the Clerk (see, Matter of Fry v Village of Tarrytown, 89 NY2d 714). Consequently, this proceeding was not properly commenced prior to the expiration of the Statute of Limitations (see, Matter of Gershel v Porr, 89 NY2d 327; Bradley v St. Clare's Hosp., 232 AD2d 814; Matter of Vetrone v Machin, 216 AD2d 839; CPLR 203 [c] [1]). Altman, J. P., Gold-stein, Florio and McGinity, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

—In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Town of Carmel Zoning Board of Appeals, filed October 20, 1997, which granted the intervenor-respondent, Mid Hudson Realty, Inc., a use variance, the petitioners appeal from so much of an order and judgment (one paper) of the Supreme Court, Putnam County (Sweeny, J.), dated March 13, 1998, as granted the motion of the respondents, in which the intervenor-respondent joined, to dismiss the proceeding as time-barred, and dismissed the proceeding.

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 [642]*642order to show cause to the Clerk (see, Matter of Fry v Village of Tarrytown, 89 NY2d 714). Consequently, this proceeding was not properly commenced prior to the expiration of the Statute of Limitations (see, Matter of Gershel v Porr, 89 NY2d 327; Bradley v St. Clare's Hosp., 232 AD2d 814; Matter of Vetrone v Machin, 216 AD2d 839; CPLR 203 [c] [1]). Altman, J. P., Gold-stein, Florio and McGinity, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

260 A.D.2d 641, 688 N.Y.S.2d 689, 1999 N.Y. App. Div. LEXIS 4334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stenger-v-town-of-carmel-zoning-board-of-appeals-nyappdiv-1999.

Opinion

Related

Cite This Page — Counsel Stack