Krenzer v. Town of Caledonia Zoning Board of Appeals

Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the petition and found that respondent’s denial of petitioner’s application was based upon substantial evidence. We note that the court also could have dismissed the petition on the ground that this proceeding was untimely (see, CPLR 304; Matter of Fry v Village of Tarrytown, 226 AD2d 461, Iv granted 88 NY2d 811; see also, William Ct.—White Hill Rd. Homeowners Assn, v New York State Commr. of Mental Retardation & Dev. Disabilities, 161 Mise 2d 552). Petitioners filed the order to show cause with the clerk of the court on July 5, 1995, 10 days after the Statute of Limitations had expired. Additionally, the failure of petitioners to include a return date on their petition is a jurisdictional defect (see, Travis v New York State Dept, of Envtl. Conservation, 185 AD2d 714). (Appeal from Judgment of Supreme Court, Livingston County, Fisher, J.—CPLR art 78.) Present—Lawton, J. P., Fallon, Callahan, Balio and Davis, JJ.