Opinion
July 16, 1981
Appeals from two orders and judgments of the Supreme Court at Special Term (Conway, J.), entered December 7, 1979 in Albany County, which dismissed two proceedings pursuant to CPLR article 78 to vacate the approval by respondent Planning Board of the City of Albany of the Pine Circle plat. On August 2, 1979, petitioners commenced an article 78 proceeding to declare void the action of the respondent Planning Board of the City of Albany (hereinafter the Board) in approving a construction project known as the Pine Circle plat. The Board moved to dismiss the petition pursuant to CPLR 7804 (subd [f]) on the ground of lack of jurisdiction due to improper service. Petitioners had served copies of the pleadings on the son of the chairman of the Board and had mailed a copy to the chairman at his home. It is conceded by petitioners that this attempted service was defective and was correctly dismissed by Special Term. CPLR 312 requires service upon a board having a chairman by delivery of the summons to him. The sole issue remaining is whether the second article 78 proceeding, commenced by petitioners on September 21, 1979 to challenge the same action of the Board, was timely brought. Section 38 Gen. City of the General City Law provides that: "Any person or persons, jointly or severally aggrieved by any decision of the planning board concerning [approval of a] plat * * * may obtain a review in the manner provided by the civil practice law and rules provided the proceeding is commenced within thirty days after the filing of the decision in the office of the board." The filing of the decision of the Board was properly found by Special Term to have occurred no later than July 3, 1979. The commencement of the second proceeding on September 21, 1979 was, therefore, not timely. Orders and judgments affirmed, with costs. Sweeney, J.P., Kane, Mikoll and Yesawich, Jr., JJ., concur. [ 101 Misc.2d 1062.]