| Matter of Gleason v Town of Clifton Park Planning Bd. |
| 2011 NY Slip Op 08875 [90 AD3d 1205] |
| December 8, 2011 |
| Appellate Division, Third Department |
| In the Matter of Dale Gleason et al., Appellants, v Town of CliftonPark Planning Board et al., Respondents, et al., Respondent. |
—[*1] Thomas R. McCarthy, Town Attorney, Clifton Park, for Town of Clifton Park PlanningBoard, respondent. The Murray Law Firm, Clifton Park (Thomas M. Kernan of counsel), for Chris Semenza,respondent.
Malone Jr., J. Appeal from a corrected judgment of the Supreme Court (Reilly Jr., J.),entered January 18, 2011 in Schenectady County, which, in a proceeding pursuant to CPLRarticle 78, granted a motion by respondents Chris Semenza and the Town of Clifton ParkPlanning Board to dismiss the petition.
Petitioners commenced this CPLR article 78 proceeding to challenge a determination ofrespondent Town of Clifton Park Planning Board that approved respondent Chris Semenza'sapplication to subdivide property owned by Evalyon M. Bartlett, as trustee of the Mericle FamilyTrust. Although petitioners properly served process on the Planning Board and Semenza, theyimproperly named the "Estate of Evalyon M. Bartlett"—rather than Bartlett astrustee—as a party and attempted to serve a copy of the petition and notice of petition toSemenza's attorney, [*2]requesting that he accept it on behalf ofthe "Estate." Semenza's counsel refused to accept service and Bartlett was never served.Thereafter, the Planning Board filed an answer and, in lieu of answering, Semenza moved todismiss the petition alleging that Bartlett was a necessary party to the proceeding and petitionershad failed to join her prior to the expiration of the statute of limitations. The Planning Board thenjoined in Semenza's motion. Finding that Bartlett was not "united in interest" with the otherrespondents, Supreme Court granted the motion. Petitioners appeal and we now reverse.
As trustee of the Mericle Family Trust, Bartlett was the titled owner of the subject property(see Henning v Rando Mach. Corp., 207 AD2d 106, 110 [1994]; see generally106 NY Jur 2d, Trusts §§ 7, 16) and, as such, was a necessary party to thisproceeding (see e.g. Matter of O'Connell v Zoning Bd. of Appeals of Town of NewScotland, 267 AD2d 742, 743 [1999], lv dismissed and denied 94 NY2d 938 [2000];Matter of Tecler v Lake George Park Commn., 261 AD2d 690, 691 [1999], lvdenied 94 NY2d 751 [1999]). It is well settled that, if a necessary party "has not been made aparty and is subject to the jurisdiction of the court, the court shall order him [or her]summoned" (CPLR 1001 [b] [emphasis added]; see Windy Ridge Farm v Assessor of Town of Shandaken, 11 NY3d725, 727 [2008]; Matter of Alexy v Otte, 58 AD3d 967, 967 [2009]). Here, althoughthe record indicates that Bartlett was, and may still be, a resident of Georgia, she is neverthelesssubject to the jurisdiction of the court by virtue of her ownership of the subject property(see CPLR 302 [a] [4]). Inasmuch as Bartlett was subject to jurisdiction, and the recorddoes not establish that she was ever properly served by petitioners, instead of dismissing thepetition, Supreme Court was required to "order [her] summoned" (CPLR 1001 [b]; see Matter of Romeo v New York StateDept. of Educ., 41 AD3d 1102, 1105 [2007]).
In light of the foregoing, we need not address petitioners' contention that Supreme Courtshould have joined Bartlett as a party on the basis that she was united in interest with the otherrespondents (see CPLR 203).
Mercure, A.P.J., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the correctedjudgment is reversed, on the law, without costs, motion denied, Evalyon M. Bartlett, as trustee ofthe Mericle Family Trust, is joined as respondent, petitioners are ordered to serve the notice ofpetition and petition within 20 days of the date of this Court's decision, and matter remitted to theSupreme Court for further proceedings not inconsistent with this Court's decision.