Matter of John J. Emmett, Jr. v Town of Edmeston

Matter of Emmett v Town of Edmeston 2004 NY Slip Op 04434 [2 NY3d 817] June 8, 2004 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 1, 2004

[*1] In the Matter of John J. Emmett, Jr., et al., Appellants,
v
Town of Edmeston, Respondent, and Darryl Barton et al., Respondents.

Decided June 8, 2004

Matter of Emmett v Town of Edmeston, 3 AD3d 816, affirmed.

APPEARANCES OF COUNSEL

Vitanza, DiStefano & Dean, LLP, Norwich (Aaron A. Dean of counsel), for appellants.

Lester A. Sittler, Fly Creek, for Darryl Barton and another, respondents.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Petitioners' claims are directed at a Zoning Board of Appeals (ZBA) determination granting a variance. Petitioners cannot invoke the "relation back" doctrine (see CPLR 203 [b]) to avoid dismissal for failure to join the ZBA, a necessary party (see CPLR 1001, 1003). Use of the "relation back" doctrine requires "unity of interest" between the party in the proceeding and the nonparty (see Mondello v New York Blood Ctr.—Greater N.Y. Blood Program, 80 NY2d 219, 226 [1992]). Petitioners' claim that the Town and the ZBA are united in interest must fail because a town and a zoning board of appeals are independent of each other where, as here, the ZBA is acting in its "administrative capacity independent from the Town Board" (Matter of [*2]Commco, Inc. v Amelkin, 62 NY2d 260, 266 [1984]).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.