IN RE: the BRONX COALITION AGAINST UPZONING INC. (2024)

Judgment (denominated an order), Supreme Court, Bronx County (Leticia M. Ramirez, J.), entered on or about August 21, 2023, granting the motions of respondents The New York City Department of City Planning, The New York City Council, and the City of New York (collectively, the municipal respondents) and Throggs Neck Associates, LLC to dismiss the petition to vacate or annul an October 12, 2022 zoning amendment approval by City Council, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Supreme Court properly dismissed the article 78 proceeding upon a finding that Throggs Neck, the developer who applied for a zoning amendment, could be inequitably affected by a judgment in the underlying petition and is therefore a necessary party to the proceeding (CPLR 1001, 1003;  see Matter of Red Hook/Gowanus Chamber of Commerce v. New York City Bd. of Stds. & Appeals, 5 N.Y.3d 452, 457, 805 N.Y.S.2d 525, 839 N.E.2d 878 [2005]).

Although Throggs Neck had a valid statute of limitations defense, it was nevertheless subject to the court's jurisdiction (see Windy Ridge Farm v. Assessor of Town of Shandaken, 11 N.Y.3d 725, 727, 864 N.Y.S.2d 794, 894 N.E.2d 1183 [2008];  see also Swezey v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 N.Y.3d 543, 554 n. 8, 950 N.Y.S.2d 293, 973 N.E.2d 703 [2012];  Matter of 37 W. Realty Co. v. New York City Loft Bd., 72 A.D.3d 406, 406, 896 N.Y.S.2d 870 [1st Dept. 2010]).  Once the court considered and subsequently granted Throggs Neck's motion to dismiss based on the expiration of the statute of limitations, it then also properly granted the municipal respondents' motion to dismiss for failure to join a necessary party, all without consideration of the discretionary factors set forth in CPLR 1001(b) (Windy Ridge, 11 N.Y.3d at 727, 864 N.Y.S.2d 794, 894 N.E.2d 1183;  see also Matter of Greens at Half Hollow, LLC v. Suffolk County Dept. of Pub. Works, 147 A.D.3d 942, 943–944, 48 N.Y.S.3d 147 [2d Dept. 2017]).

We have considered petitioners' remaining arguments, including petitioners' argument that Throggs Neck might not be inequitably affected by a potential judgment, and find them unavailing.