| Matter of Lazzari v Town of Eastchester |
| 2009 NY Slip Op 04239 [62 AD3d 1002] |
| May 26, 2009 |
| Appellate Division, Second Department |
| In the Matter of Richard Lazzari, Respondent, v Town ofEastchester et al., Appellants. |
—[*1] James M. Rose, White Plains, N.Y., for respondent.
In a proceeding pursuant to CPLR article 78 to compel the Town of Eastchester and theTown Board of the Town of Eastchester to reinstate the petitioner to his former positions asassistant building inspector and deputy building inspector of the Town of Eastchester, pursuantto Civil Service Law § 71, the appeal is from a judgment of the Supreme Court,Westchester County (Cacace, J.), dated August 1, 2008, which granted the petition and directedthat the petitioner be reinstated.
Ordered that the judgment is reversed, on the law, with costs, and the matter is remitted tothe Supreme Court, Westchester County, for the joinder of the Westchester County Departmentof Human Resources as a respondent in this proceeding, without prejudice to its right to assertany defenses or affirmative defenses, the service of the notice of petition and petition by thepetitioner upon the Westchester County Department of Human Resources within 30 days afterservice upon him of a copy of this decision and order, the service by the Westchester CountyDepartment of Human Resources of an answer or motion directed to the petition, and a newdetermination thereafter of the petition, in accordance herewith.
Under the circumstances presented, we agree with the appellants that the WestchesterCounty Department of Human Resources (hereinafter the County DHR) is a necessary party tothis proceeding (CPLR 1001 [a]), and the Supreme Court should have ordered it joined (CPLR1001 [b]). Accordingly, the County DHR must be joined as a respondent without prejudice to itsright to assert any defenses or affirmative defenses and the petitioner must serve the notice ofpetition and petition upon it within 30 days after service upon him of a copy of this decision andorder (see Windy Ridge Farm vAssessor of Town of Shandaken, 11 NY3d 725, 727 [2008]; Matter of Romeo v New York State Dept.of Educ., 41 AD3d 1102, 1105 [2007]). Thus, we remit the matter to the SupremeCourt, Westchester County, for a new determination of the petition, with the participation of theCounty DHR. Prudenti, P.J., Miller, Eng and Belen, JJ., concur.