Wallshein v. Burns

14 Misc. 2d 943, 178 N.Y.S.2d 780, 1958 N.Y. Misc. LEXIS 2678

Opinion

Howard T. Hogan, J.

Petitioners have instituted a proceeding pursuant to article 78 of the Civil Practice Act to review the action of the respondent Town Board in denying them a special permit to operate a dentist’s office in a residential zone. Bespondents move to dismiss the petition on the ground that it was not served within the 30-day period provided by law. Subdivision 7 of section 267 of the Town Law provides that: “ Any person or persons, jointly or severally aggrieved by any decision of the board of appeals or any officer, department, hoard or bureau of the town, may apply to the supreme court for relief by a proceeding under article seventy-eight of the civil practice act. Such proceeding shall be governed by the provisions of article seventy-eight of the civil practice act, except that (a) it must be instituted as therein provided within thirty days after the filing of a decision in the office of the town clerk (Italics supplied.)

It has been held that the Town Board is a “ board * * * of the town ’ ’ within the contemplation of the statute (Matter of Tobin v. Waters, 6 Misc 2d 159).

The decision of the respondent was filed on July 1,1958. This proceeding was instituted by the service of the petition on August 21,1958. Accordingly, the petition must be dismissed.

Order signed.