Matter of Charles Ferrando v New York City Board of Standards and Appeals

Matter of Ferrando v New York City Bd. of Stds. & Appeals 2004 NY Slip Op 08614 [12 AD3d 287] November 23, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

In the Matter of Charles Ferrando, Appellant,
v
New York City Board of Standards and Appeals, Respondent.

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Order and judgment (one paper), Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about October 7, 2003, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 challenging respondent's denial of petitioner's appeal which had sought revocation of a certificate of occupancy, unanimously affirmed, without costs.

Petitioner's failure to join the owner of the premises for which the disputed certificate of occupancy was issued constituted a failure to join a necessary party (see Matter of Manupella v Troy City Zoning Bd. of Appeals, 272 AD2d 761 [2000]). Since the applicable statutory period has expired and the owner can no longer be joined, and proceeding in his absence would potentially be highly prejudicial to him, the proceeding was properly dismissed (see CPLR 1001, 1003). We note that, contrary to petitioner's argument, the "relation back" doctrine has no application to this matter since, inter alia, it is evident that petitioner's nonjoinder of the premises [*2]owner was deliberate and not attributable to an "excusable mistake" (see Buran v Coupal, 87 NY2d 173, 178 [1995]). Concur—Tom, J.P., Ellerin, Williams, Lerner and Catterson, JJ.