Posted by: Patricia Salkin | December 16, 2020

NY Appellate Court Holds 30-Day Statute of Limitations Applies to Site Plan Challenge Where Plaintiffs Failed to Name/Serve Necessary Parties

This post was authored by Simone M. Freeman, Esq.

In Mensh v. Planning Board of the Village of Warwick, et al., a New York appellate court determined that in a hybrid proceeding where a declaratory action seeks an adjudication of rights that could be resolved in an CPLR article 78 proceeding, the 30-day statute of limitations applicable to a CPLR article 78 proceeding applies. Further, the relation-back doctrine would not apply as asserted against a new defendant/respondent where the petitioners/plaintiffs failed to establish that the property owners are united in interest with the developer, or that there was a mistake as to the identity of the proper parties at the time of the original pleading.

Developer 16 Elm Street Realty, LLC (the “Developer”) sought site plan approval from the Village of Warwick Planning Board (the “Board”) to develop a restaurant/catering facility on property owned by Frank D. Petrucci, Lynn Crane, and Glen Petrucci (hereinafter collectively, the “owners”). The Board issued a negative declaration under the State Environmental Quality Review Act on September 21, 2017, and granted Developer’s site plan approval on February 15, 2018.

Petitioners/plaintiffs are owners of the adjacent properties. They commenced this hybrid action to: (i) annul the Board’s site plan approval and negative declaration, (ii) compel the Village of Warwick Building Inspection to issue a written determination as to the site plan’s compliance with the zoning code, and (iii) declare that the subject restaurant/catering facility violates the zoning code. However, when petitioners/plaintiffs commenced the action in March 2018, they failed to name the owners as parties. They subsequently amended their pleadings and, in April 2018, served the owners with an amended petition/complaint. Petitioners/plaintiffs did not dispute or deny that that the owners were necessary parties to the action, or that the 30-day statute of limitations applicable to the Board’s site plan approval expired before they filed and served the amended petition and complaint against the owners in April 2018.

Mensh v. Planning Board of the Village of Warwick, et al., 2020 NY Slip Op 07578 (NYAD 2 Dept 12/16/20)

Simone M. Freeman is a partner at Jaspan Schlesinger LLP focusing her practice on land use, zoning and municipal matters. Simone can be reached at: 516-746-8000 or

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