Posted by: Patricia Salkin | June 1, 2014

NY Appellate Court Finds that a Party was Indispensable in a Variance Case

The Zoning Board of Appeals for the Town of Islip (hereinafter “ZBA”) granted an application made by nonparties Barry Wetherall and Harriet Wetherall for area variances for a shed, outdoor shower stall, and garbage bin. The petitioners commenced this proceeding to annul the ZBA’s determination. Although the petition included the Wetheralls as respondents in the proceeding, the Supreme Court granted the Wetheralls’ motion to dismiss the proceeding, finding that the petitioners’ attempt to serve the Wetheralls pursuant to the CPLR 308 (4) “affix and mail” method was defective as a matter of law. The Supreme Court then issued a decision to annul the ZBA’s determination.

The Appellate Court said that the court may excuse the failure to join a necessary party and allow an action to continue in the interest of justice based on an evaluation of the five factors itemized in CPLR 1001 (b): “(1) whether the petitioner has another remedy if the action is dismissed for nonjoinder, (2) the prejudice that may accrue from nonjoinder to the respondent or to the nonjoined party, (3) whether and by whom prejudice might have been avoided or may in the future be avoided, (4) the feasibility of a protective provision, and (5) whether an effective judgment may be rendered in the absence of the nonjoined party.”
After weighing the five factors set out in CPLR 1001 (b), the concluded that the Wetheralls met these criteria and were indispensable parties. The Supreme Court should have therefore denied the part of the petitioners’ motion to compel the Building Commissioner for the Town of Islip to revoke that portion of the certificate of compliance relating to a shed and outdoor shower stall on property owned by the Wetheralls. The Appellate Court further held that the Supreme Court should have also denied those sections of the petition relating to the annulment of the determination as granted the area variances for a shed and outdoor shower stall on property owned by the Wetheralls, and dismissed those portions of the proceeding.

Feder v. Town of Islip Zoning Bd. of Appeals, 980 N.Y.S.2d 537 (N.Y.A.D. 2d Dept. 2014)


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