Opinion
CA 02-00473
December 30, 2002.
Appeal from a judgment (denominated order) of Supreme Court, Steuben County (Bradstreet, J.), entered May 8, 2001, which, inter alia, granted respondent's motion to dismiss the CPLR article 78 petition.
CHRISTOPHER A. SPENCE, P.C., BUFFALO (CHRISTOPHER A. SPENCE OF COUNSEL), FOR PETITIONERS-APPELLANTS.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (JANE C. CAMERON OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted respondent's motion to dismiss the petition for failure to join necessary parties ( see CPLR 3211 [a] [10]). Petitioners commenced this proceeding challenging respondent's determination establishing well spacing units in a natural gas field in the Town of Pultney that is being developed by Columbia Natural Resources (CNR). Petitioners contended that they were improperly excluded from sharing in the royalties from a well (Bergstresser well spacing unit) located on a farm immediately adjacent to their property and sought to modify the determination establishing the boundaries of that well spacing unit to include their parcel.
The court properly determined that the 16 landowners within the Bergstresser well spacing unit are necessary parties because, if petitioners prevail, the royalties of those 16 landowners will be adversely affected ( see CPLR 1001 [a]). "A party whose interest may be inequitably or adversely affected by a potential judgment must be made a party in a CPLR article 78 proceeding" ( Matter of Manupella v. Troy City Zoning Bd. of Appeals, 272 A.D.2d 761, 763; see Matter of Van Derwerker v. Village of Kinderhook Zoning Bd. of Appeals, 295 A.D.2d 676). Petitioners' contention that the 16 landowners are not necessary parties because their potential loss of royalties on a percentage basis is de minimis is made for the first time on appeal and thus is not properly before us ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985). We further note that petitioners' contention is based upon factual information appearing for the first time in petitioners' brief on appeal ( see generally Oram v. Capone, 206 A.D.2d 839, 840).
We disagree with petitioners that dismissal was not the appropriate remedy here ( see CPLR 1001 [b]). The statute of limitations has expired with respect to the 16 landowners, who were never served, and they have not consented to appear. Petitioners contend that the interests of the 16 landowners will be protected by respondent. The interest of respondent, however, is regulatory only ( see ECL 23-0301), and thus there is no assurance that, if this matter were allowed to go forward, the interests of the 16 landowners in their royalties would be protected ( see Matter of Mount Pleasant Cottage School Union Free School Dist. v Sobol, 163 A.D.2d 715, 716, affd 78 N.Y.2d 935; Matter of Llana v. Town of Pittstown, 245 A.D.2d 968, 969, lv denied 91 N.Y.2d 812).
In any event, petitioners failed to explain why they did not name the 16 landowners as respondents in the first instance. The original petition filed in this matter indicates that petitioners were aware from the outset of the identity of the 16 landowners, which was also a matter of public record ( see Matter of Karmel v. White Plains Common Council, 284 A.D.2d 464, 465; Matter of Ogbunugafor v. New York State Educ. Dept., 279 A.D.2d 738, 740, lv denied 96 N.Y.2d 712; Matter of Baker v. Town of Roxbury, 220 A.D.2d 961, 963-964, lv denied 87 N.Y.2d 807; see also Llana, 245 A.D.2d at 969). In view of our determination, we do not determine the further issue whether CNR is also a necessary party.