Articles Posted in Civil Proceedure

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The Appellate Division determined that the challenge to a proposal for a telecommunications facility (cell tower) on State land was not yet ripe for review. In Village of Pelham Manor v. Crown Communications N.Y., Inc. the Appellate Division found that, where Crown Communications had a contract with the State to construct cell towers on state land, the failure of the State to take final action on the proposal had, under the specific circumstances of this case, neither triggered a default provision in the contract that would have constituted an approval, nor otherwise resulted in a “final” action that was ripe for judicial review.

The agreement between the State and Crown provided in part, under Section 2(E): “prior to any proposed installation of a telecommunications tower, Crown is required to provide to the State a schedule that contains the information set forth in that section, which includes, among other things, an environmental assessment, drafts of any documents required by the State Environmental Quality Review Act (hereinafter SEQRA), draft site plans and design specifications, a description of State action required, and local approvals, if any, required. Section 2(E) further provides that the State shall review the schedule, and within 30 days of receipt, the State shall notify Crown in writing of its approval or disapproval of the project. Failure to do so ‘shall constitute approval of such installation for purposes of [the] Agreement.'”

Effectively, Plaintiff argued in its August, 2020 pleadings that since more than 30 days had passed from the time of the submission of an Environmental Assessment Form by Crown (in July 2020), without action by the State, the project had been approved by default. The court disagreed noting:

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The New York Court of Appeals, in an action challenging the issuance of a use variance, clarified the application of the “relation back doctrine” to allow an amended petition adding a necessary party, after expiration of the statute of limitations. In Matter of Joseph Nemeth v. K-Tooling the Court found, omitting the owner of the property at issue from the initial petition in the Article 78 challenge to the use variance could be cured through the relation back doctrine in CPLR 203 (C).

Outlining the general rule at issue, the Court explained that with: “the relation back doctrine, claims against a party mistakenly omitted from the initial filing and then added after the expiration of the limitations period may be treated as interposed when the action was timely commenced against the originally named respondents. The relation back doctrine applies when (1) the claims arise out of the same conduct, transaction or occurrence; (2) the new party is ‘united in interest’ with an original defendant and thus can be charged with such notice of the commencement of the action such that a court concludes that the party will not be prejudiced in defending against the action; and (3) the new party knew or should have known that, but for a mistaken omission, they would have been named in the initial pleading (see Buran v Coupal, 87 NY2d 173, 178 [1995]).

The doctrine focuses on the notice and prejudice to the added party. However, the doctrine does not apply when a plaintiff ‘intentionally decides not to assert a claim against a party known to be potentially liable’ or when the new party was omitted ‘to obtain a tactical advantage in the litigation’ (id. at 181). These exceptions minimize gamesmanship and manipulation of the CPLR (see id.).'”

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