| Matter of Dowd v Planning Bd. of Vil. of Millbrook |
| 2008 NY Slip Op 06565 [54 AD3d 339] |
| August 5, 2008 |
| Appellate Division, Second Department |
| In the Matter of Timothy J. Dowd et al., Appellants, et al.,Petitioners, v Planning Board of Village of Millbrook et al.,Respondents. |
—[*1] McCabe & Mack, LLP, Poughkeepsie, N.Y. (Richard J. Olson of counsel), for respondentPlanning Board of Village of Millbrook, and Corbally, Gartland and Rappleyea, LLP,Poughkeepsie, N.Y. (Allan B. Rappleyea of counsel), for respondents Richard Crowe and JoanCrowe (one brief filed).
In a proceeding pursuant to CPLR article 78 to review two determinations of the PlanningBoard of Village of Millbrook, both dated December 15, 2005, granting an application forpreliminary approval of a proposed residential subdivision on Nine Partners Lane in the Villageof Millbrook, and issuing a negative declaration under the State Environmental Quality ReviewAct (ECL art 8), the petitioners Timothy J. Dowd, Michele Dowd, Gary Beller, Howard Bellin,Walter Cadette, Joan Cadette, Robert Mahar, and John Jagar appeal (1) from an order andjudgment (one paper) of the Supreme Court, Dutchess County (Pagones, J.), dated July 12, 2006,which granted the motion of the Planning Board of Village of Millbrook to dismiss theproceeding pursuant to CPLR 3211 (a) (5) as time-barred and dismissed the proceeding, and (2),as limited by their brief, from so much of an order of the same court dated January 10, 2007, asdenied their motion for leave to renew their opposition to the motion to dismiss the proceeding.
Ordered that the appeals are dismissed as academic, without costs or disbursements.
The petitioners did not seek injunctive relief until 10 months after the date of the order and[*2]judgment granting the motion of the Planning Board of theVillage of Millbrook (hereinafter the Planning Board) to dismiss this CPLR article 78 proceedingpursuant to CPLR 3211 (a) (5) as time-barred, and dismissing this proceeding challenging thePlanning Board's grant of preliminary subdivision approval. During those 10 months, finalapproval was given for the subdivision, and since that time, the subject project has beensubstantially completed. Specifically, it is undisputed that the existing home on one of the lotswas renovated and sold, that the applicants obtained all the building permits necessary toconstruct homes on the three other subject lots, and that construction of those homes is wellunder way, at considerable cost to the applicants.
The appellants failed to timely do all that they could to safeguard their interests, and we thusdismiss the appeals as academic (see Matter of Dreikausen v Zoning Bd. of Appeals of Cityof Long Beach, 98 NY2d 165 [2002]; Matter of Hudson Val. Nursery v Planning Bd. ofTown of Orangetown, 306 AD2d 283 [2003]; cf. Matter of E & J Sylcox Realty, Inc. v Town of Newburgh Planning Bd.,12 AD3d 445 [2004]). Lifson, J.P., Miller, Dillon and Eng, JJ., concur.