Opinion
133 SSM 17.
June 8, 2004.
APPEAL from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered January 29, 2004. The Appellate Division, with two Justices dissenting, (1) reversed, on the law, a judgment of the Supreme Court, Otsego County (Kevin M. Dowd, J.), entered in a proceeding pursuant to CPLR article 78, which had denied respondents' motion to dismiss a petition challenging a land use variance, (2) granted the motion, and (3) dismissed the petition.
Matter of Emmett v. Town of Edmeston, 3 AD3d 816, affirmed.
Vitanza, DiStefano Dean, LLP, Norwich ( Aaron A. Dean of counsel), for appellants.
Lester A. Sittler, Fly Creek, for Darryl Barton and another, respondents.
Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Petitioners' claims are directed at a Zoning Board of Appeals (ZBA) determination granting a variance. Petitioners cannot invoke the "relation back" doctrine ( see CPLR 203 [b]) to avoid dismissal for failure to join the ZBA, a necessary party ( see CPLR 1001, 1003). Use of the "relation back" doctrine requires "unity of interest" between the party in the proceeding and the nonparty ( see Mondello v. New York Blood Ctr. — Greater N.Y. Blood Program, 80 NY2d 219, 226). Petitioners' claim that the Town and the ZBA are united in interest must fail because a town and a zoning board of appeals are independent of each other where, as here, the ZBA is acting in its "administrative capacity independent from the Town Board" ( Matter of Commco, Inc. v. Amelkin, 62 NY2d 260, 266).
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals ( 22 NYCRR 500.4), order affirmed, with costs, in a memorandum.