AHEPA 91 INC v. John G. Scherlein, Shirley A. Scherlein, Henry A. Tworek, Patricia M. Tworek, Thomas M. Locke, Cheryl A. Locke, Phyllis Presti, Pino Presti, Ismael Silva, Cathleen Magistrale-Silva, Peter Marinaro, Peggy Sue Marinaro, Roseann Maurer, Intervenors-Appellants, et al., Intervenor. (1999)

Petitioner previously commenced a CPLR article 78 proceeding seeking to reinstate the zoning of a parcel of property in the Town of Lancaster (Town) to Multifamily Residential (MFR-3) zoning.   When that proceeding came before our Court, we affirmed that part of the judgment annulling the Town's rescission of the rezoning and reinstating the zoning of the subject parcel to MFR-3, but vacated the remaining decretal paragraphs of the judgment ordering the Town to approve petitioner's site plan for development and to issue a building permit (Matter of AHEPA 91 v. Town of Lancaster [appeal No. 2], 237 A.D.2d 978, 654 N.Y.S.2d 884).

Thereafter, the Town Board approved petitioner's site plan subject to petitioner obtaining a variance from the requirements of the Town Zoning Code. The Town Building Inspector withheld approval of petitioner's site plans because the plans did not meet the required minimum square footage per unit.   Petitioner applied for an area variance and, following a public hearing, respondent Zoning Board of Appeals of the Town of Lancaster (ZBA) denied petitioner's request.

Petitioner then obtained an order to show cause seeking to annul the determination of the ZBA. Both the order to show cause and annexed petition contained the same index number as the prior CPLR article 78 proceeding.   Petitioner admittedly failed to pay a filing fee and secure an index number for the new proceeding.   Respondents answered and contended that the proceeding should be dismissed because petitioner failed to comply with the commencement-by-filing statutes.   Supreme Court concluded that the defect in commencing the proceeding did not deprive the court of jurisdiction and granted petitioner's application to annul the determination of the ZBA. That was error.

 Because petitioner failed to pay a filing fee and secure an index number for the new proceeding, the proceeding was never properly commenced (see, CPLR 304;  Matter of Gershel v. Porr, 89 N.Y.2d 327, 330-332, 653 N.Y.S.2d 82, 675 N.E.2d 836).   Strict compliance with CPLR 304 and the filing system is mandatory, and where, as here, the opposing party timely objects to noncompliance with the filing requirement, the petition must be dismissed (see, Matter of Fry v. Village of Tarrytown, 89 N.Y.2d 714, 723, 658 N.Y.S.2d 205, 680 N.E.2d 578;  cf., Venditti v. Town of Alden, 239 A.D.2d 910, 659 N.Y.S.2d 628).

Judgment insofar as appealed from unanimously reversed on the law without costs and petition dismissed.

MEMORANDUM: