| Matter of Coalition to Save Cedar Hill v Planning Bd. of Inc. Vil. of PortJefferson |
| 2008 NY Slip Op 04347 [51 AD3d 666] |
| May 6, 2008 |
| Appellate Division, Second Department |
| In the Matter of Coalition to Save Cedar Hill et al.,Appellants, v Planning Board of Incorporated Village of Port Jefferson et al.,Respondents. |
—[*1] Lewis Johs Avallone Aviles, LLP, Riverhead, N.Y. (Michael G. Kruzynski of counsel), forrespondents Planning Board of Incorporated Village of Port Jefferson and Robert Juliano, asVillage of Port Jefferson Administrator/Clerk. Bracken & Margolin, LLP, Islandia, N.Y. (Linda U. Margolin of counsel), for respondentsLiberty Meadows, LLC, in its own right and as assignee for Howard O. Wunderlich, individuallyand as Trustee of the Howard O. Wunderlich Revocable Living Trust, The Howard O.Wunderlich Revocable Living Trust, Adeline E. Wunderlich, individually and as Trustee of theAdeline E. Wunderlich Revocable Living Trust, The Adeline E. Wunderlich Revocable LivingTrust, Sean Cash, and Kathleen L. Cash.
In a hybrid proceeding pursuant to CPLR article 78 to review a resolution of the respondentPlanning Board of Incorporated Village of Port Jefferson, dated March 28, 2006, and action, interalia, for a judgment declaring that the practice of the Clerk of the Village of Port Jeffersonlimiting the public's access to files which are the subject of a hearing is arbitrary, capricious,unconstitutional, null, and void, the petitioners appeal from a judgment of the Supreme Court,Suffolk County (Pines, J.), dated December 11, 2006, which, upon an order of the same courtdated September 29, 2006, (1) granting the motion of the respondents Howard O. Wunderlich,individually and as trustee of the Howard O. Wunderlich Revocable Living Trust, and Adeline E.Wunderlich, individually and as trustee of the Adeline E. Wunderlich Revocable Living Trust, todismiss the amended petition/complaint in its entirety for lack of personal jurisdiction overnecessary parties, (2) granting the cross motion of the respondents Liberty Meadows, LLC, SeanCash, and Kathleen L. Cash to dismiss the amended petition/complaint insofar as asserted againstthem on the same [*2]ground, (3) granting the cross motion of therespondents Planning Board of Incorporated Village of Port Jefferson and Robert Juliano, asVillage of Port Jefferson Administrator/Clerk, to dismiss the amended petition/complaint insofaras asserted against them, and (4) denying their cross motion, inter alia, pursuant to CPLR 306-bto extend the time to serve the respondents Howard O. Wunderlich, individually and as trustee ofthe Howard O. Wunderlich Revocable Living Trust, and Adeline E. Wunderlich, individuallyand as trustee of the Adeline E. Wunderlich Revocable Living Trust, and pursuant to CPLR 1001(b) to permit the proceeding to continue in the absence of the respondents Howard O.Wunderlich, individually and as trustee of the Howard O. Wunderlich Revocable Living Trust,and Adeline E. Wunderlich, individually and as trustee of the Adeline E. Wunderlich RevocableLiving Trust, dismissed the amended petition/complaint.
Ordered that the judgment is modified, on the law, by deleting the provision thereofdismissing the eighth cause of action of the amended petition/complaint; as so modified, thejudgment is affirmed, the eighth cause of action for a judgment declaring that the practice of theClerk of the Village of Port Jefferson limiting the public's access to files which are the subject ofa hearing is arbitrary, capricious, unconstitutional, null, and void is reinstated, that branch of thecross motion which was to dismiss the amended petition/complaint insofar as asserted against therespondent Robert Juliano, as Village of Port Jefferson Administrator/Clerk, is denied, the actioninsofar as asserted against that respondent is severed, and the order is modified accordingly; andit is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
After commencing the instant hybrid proceeding and action just before the expiration of thefour-month statute of limitations applicable to a proceeding pursuant to CPLR article 78, theappellants attempted to serve the original petition/complaint, inter alia, upon the respondentsHoward O. Wunderlich and Adeline E. Wunderlich, in their individual capacities, by "nail andmail" service pursuant to CPLR 308 (4). Upon later realizing that the title owners of the subjectproperty were, in fact, the Howard O. Wunderlich Revocable Living Trust and the Adeline E.Wunderlich Revocable Living Trust, the appellants filed an amended petition/complaint namingthe Wunderlichs both individually and in their capacities as trustees of the subject trusts. TheWunderlichs accepted service of the amended petition/complaint, but reserved their right tochallenge jurisdiction based on the alleged defect in the method of service of the originalpetition/ complaint upon them, in their individual capacity, and the alleged failure to join theactual title owners before the expiration of the applicable statute of limitations.
Contrary to the appellants' contentions, they failed to meet the due diligence requirement forservice of the original petition/complaint upon the Wunderlichs, in their individual capacities,pursuant to CPLR 308 (4) (see Countyof Nassau v Long, 35 AD3d 787 [2006]; County of Nassau v Yohannan, 34 AD3d 620 [2006]). Moreover, itis clear that the hybrid action and proceeding, with the exception of the eighth cause of action,could not proceed in the absence of the actual title owners of the subject property (see Matter of Red Hook/Gowanus Chamberof Commerce v New York City Bd. of Stds. & Appeals, 5 NY3d 452 [2005]). Under thefacts presented, the Supreme Court did not improvidently exercise its discretion in declining tolet the hybrid proceeding and action continue without the Wunderlichs pursuant to CPLR 1001(b) (see Matter of Red Hook/GowanusChamber of Commerce v New York City Bd. of Stds. & Appeals, 5 NY3d 452 [2005]),and in declining to extend the time for service pursuant to CPLR 306-b (see Leader vMaroney, Ponzini & Spencer, 97 NY2d 95 [2001]). [*3]
The court erred, however, in dismissing the eighth causeof action. Although the Wunderlichs broadly framed their motion as one to dismiss the amendedpetition/complaint in its entirety as to all of the respondents, and the Supreme Court apparentlytreated it as such, the Wunderlichs did not have standing to seek dismissal of the eighth cause ofaction, which sought declaratory relief only with respect to "the Village of Port Jefferson Clerk."As the Village respondents correctly concede on appeal, the Supreme Court "should not havedismissed the eighth cause of action." Accordingly, we reinstate that cause of action and severthe action against the respondent Village of Port Jefferson Administrator/Clerk.
The appellants' remaining contentions either are without merit or need not be reached in lightof our determination. Fisher, J.P., Miller, McCarthy and Chambers, JJ., concur.