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Amended Article 78 Petition Attempting to Add Property Owner Barred by Statute of Limitations

An attempt to cure the failure to name a property owner in an Article 78 proceeding challenging a site plan and special permit approval was found barred by the statute of limitations. In Matter of  Sullivan v. Planning Board of the Town of Mamakating, the Appellate Division dismissed an Article 78 proceeding challenging an approval for AT&T to construct a wireless telecommunication tower on property it was to lease from the property owner, Hart.

Initially, the Petitioners brought the Article 78 proceeding naming the Town Planning Board, as well as AT&T, as respondents. However, Hart was not named. Therefore, the Respondents moved to dismiss the action on the grounds that the Petitioners failed to name a necessary party, as well as on other grounds. The lower court directed that Hart be joined and Petitioners filed an amended notice of petition and petition naming Hart.

Hart then moved to dismiss on the grounds that the statute of limitations had expired before he was joined as a party. The Town and AT&T joined in the motion. The lower court dismissed the action on those grounds and the Appellate Division affirmed.

The Appellate Division noted that there is a “relationship back doctrine” that permits joining a party even after the statute of limitations has expired. However, a three prong test must be met in order to successfully apply the doctrine. The test requires that the Petitioners demonstrate:

“(1) that the claims arose out of the same occurrence, (2) that the later-added respondent is united in interest with a previously named respondent, and (3) that the later-added respondent knew or should have known that, but for a mistake by petitioners as to the later-added respondent’s identity, the proceeding would have also been brought against him or her…”.

The Court found that the Petitioners failed to meet the second prong of the test, in that AT&T and Hart do not have a unity of interest, despite the fact that, on the face of it, it would appear their interests would be the same.

“While AT & T and Hart may have the same immediate purpose in opposing petitioners’ CPLR article 78 petition, ‘that, in and of itself, does not create a unity of interest such that an action against [Hart] relates back to the filing date of the petition’…AT & T’s interest is in its business of providing wireless coverage, whereas Hart’s interest is in the use of his real property. ‘Such divergent long-term interests cannot be guaranteed to protect [Hart] from future prejudice in the case’ (Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Stds. & Appeals, 5 NY3d at 457). Accordingly, and contrary to petitioners’ contention, Hart is not united in interest with AT & T…”

The Court also found the Petitioners failed to meet the third prong of the test, by listing Hart as the property owner in the original petition.

” Petitioners correctly identified Hart as the property owner in their original petition, foreclosing any contention that they made a mistake in identifying the relevant property owner. The fact that a petitioner is aware of the existence of a property owner but fails to realize that the property owner is legally required to be named in a proceeding is not a mistake contemplated by the relation back doctrine…”.

-Steven Silverberg