Beck v. Goodday

In a proceeding pursuant to article 78 of the CPLR to annul a determination of the Zoning Board of Appeals of the Town of Ramapo, the petitioner appeals from an order of the Supreme Court, Rockland County, entered August 25, 1964, which dismissed the petition upon the ground of lack of jurisdiction over the respondent board. Order reversed and motion denied, without costs, and without prejudice to assertion of the defense of lack of jurisdiction in the answer, if the respondent board be so advised; service of the answer is to be made within 10 days after entry of the order hereon. In our opinion, on the merits, the petitioner failed to comply with the mandatory prerequisites of the CPLR as to the service required on the Zoning Board of Appeals in order properly to commence this proceeding against said board (cf. Matter of Pearl v. Keller, 20 Misc 2d 219). There appears to be no authority in the instant matter for service of the petition and order to show cause upon the Town Attorney or Town Clerk as a basis for obtaining jurisdiction over the respondent board (cf. Matter of Rose Homes v. Commerdinger, 44 Misc 2d 985). Thus, if the motion to dismiss the petition were properly before Special Term, we would affirm that court’s order. However, in view of the fact that the respondent board, on its motion to dismiss the petition, served its motion papers by mail on May 28, 1964, returnable on June 1, 1964, which was less than the time prescribed by statute (CPLR 7804, subds. [c], [f]), Special Term did not acquire jurisdiction of the motion and the order granting the board’s motion was jurisdictionally void (cf. Morabilo v. Champion Swimming Pool Corp., 18 A D 2d 706; Todd v. Gull Contr. Co., 22 A D 2d 904; Miot v. Jo Carl Realty Corp., 20 A D 2d 664). While we are constrained to sustain the technical objection to the motion made by the respondent board, the denial of such motion is without prejudice to asserting the defense of lack of jurisdiction in the answer which the board may wish to interpose to the petition (CPLR 7804, subds. [d], [f]). Ughetta, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.