IN RE: RED HOOK/GOWANUS CHAMBER OF COMMERCE (2005)

In a proceeding pursuant to CPLR article 78 to review a determination of the New York City Board of Standards and Appeals dated December 23, 2003, which, after a hearing, inter alia, granted the application of 160 Imlay Street Real Estate, LLC, for a use variance, New York City Board of Standards and Appeals and City of New York appeal, by permission, from an order of the Supreme Court, Kings County (Lewis, J.), dated July 30, 2004, which denied their motion to dismiss the proceeding for failure to join a necessary party, and granted the petitioner's cross motion for leave to serve and file an amended petition adding 160 Imlay Street Real Estate, LLC, as a necessary party, and to establish a schedule for the service of responsive pleadings, and 160 Imlay Street Real Estate, LLC, separately appeals, by permission, from the same order.

ORDERED that the order is reversed, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs, the motion is granted, the cross motion is denied, and the proceeding is dismissed.

The Supreme Court improperly denied the motion to dismiss the proceeding for failure to timely join the landowner, 160 Imlay Street Real Estate, LLC, as a necessary party (see Matter of Bayside Homeowners Assn. v. Chin, 12 A.D.3d 370, 371, 783 N.Y.S.2d 305, lv. denied 4 N.Y.3d 704, 792 N.Y.S.2d 897, 825 N.E.2d 1092;  Matter of Ferruggia v. Zoning Bd. of Appeals of the Town of Warwick, 5 A.D.3d 682, 774 N.Y.S.2d 760;  Matter of Jenkins v. Strough, 303 A.D.2d 754, 756 N.Y.S.2d 867;  Matter of Long Is. Pine Barrens Socy. v. Town of Islip, 286 A.D.2d 683, 729 N.Y.S.2d 907;  Matter of Karmel v. White Plains Common Council, 284 A.D.2d 464, 465, 726 N.Y.S.2d 692;  Matter of Artrip v. Inc. Vill. of Piermont, 267 A.D.2d 457, 700 N.Y.S.2d 844;  Matter of New York City Audubon Socy. v. New York State Dept. of Envtl. Conservation, 262 A.D.2d 324, 691 N.Y.S.2d 562).   Contrary to the petitioner's contention, its failure to adequately explain why it did not include the landowner, who was subject to the jurisdiction of the court (cf. Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 766 N.Y.S.2d 654, 798 N.E.2d 1047, cert. denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430), as a respondent in a timely manner, despite being aware of its identity, precludes it from proceeding in the landowner's absence (see CPLR 1001[b];  Matter of Bayside Homeowners Assn. v. Chin, supra at 371, 783 N.Y.S.2d 305;  Matter of Lodge v. D'Aliso, 2 A.D.3d 525, 526, 767 N.Y.S.2d 909;  Matter of Chalian v. Malone, 307 A.D.2d 619, 621, 762 N.Y.S.2d 707;  Matter of Bianchi v. Town of Greece Planning Bd., 300 A.D.2d 1043, 1044, 751 N.Y.S.2d 908;  Matter of Spence v. Cahill, 300 A.D.2d 992, 993, 752 N.Y.S.2d 511;  Matter of Manupella v. Troy City Zoning Bd. of Appeals, 272 A.D.2d 761, 763-764, 707 N.Y.S.2d 707;  Matter of Llana v. Town of Pittstown, 245 A.D.2d 968, 969, 667 N.Y.S.2d 112).   Therefore, the petitioner's cross motion for leave to serve and file an amended petition to add the landowner as a necessary party, made after the expiration of the limitations period, should have been denied as untimely (see Matter of East Bayside Homeowners Assn. v. Chin, supra;   Matter of Chalian v. Malone, supra;  Matter of Fagelson v. McGowan, 301 A.D.2d 652, 755 N.Y.S.2d 394;  see also Battle v. Brookhaven Nursing Home, 7 A.D.3d 553, 776 N.Y.S.2d 495).

The petitioner's contention that the 30-day limitations period provided in New York City Administrative Code § 25-207(a) is unconstitutionally short is unpreserved for appellate review (see Matter of Female D., 296 A.D.2d 408, 409, 744 N.Y.S.2d 891;  Matter of Alston v. New York City Tr. Auth., 186 A.D.2d 649, 650, 588 N.Y.S.2d 418), is not properly raised in this CPLR article 78 proceeding (see Press v. County of Monroe, 50 N.Y.2d 695, 702, 431 N.Y.S.2d 394, 409 N.E.2d 870;  Matter of Ames Volkswagen, Ltd. v. State Tax Commission, 47 N.Y.2d 345, 348, 418 N.Y.S.2d 324, 391 N.E.2d 1302), and, in any event, is without merit (see New York Cent. and H.R.R. Co. v. City of Yonkers, 238 N.Y. 165, 144 N.E. 490;  CWM Chemical Services, LLC v. Roth, 15 A.D.3d 77, 787 N.Y.S.2d 780;  Matter of Brault v. New York State Tax Appeals Tribunal, 265 A.D.2d 700, 696 N.Y.S.2d 579;  Umansky v. New York Metropolitan Tr. Auth., 111 A.D.2d 918, 491 N.Y.S.2d 33).

The petitioner's remaining contention is without merit.