                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 10, 2016                   521905
________________________________

In the Matter of HUDSON RIVER
   SLOOP CLEARWATER, INC.,
   et al.,
                    Appellants,
      v

TOWN BOARD OF THE TOWN OF                   MEMORANDUM AND ORDER
   COEYMANS et al.,
                    Respondents,
      and

COEYMANS RECYCLING CENTER, LCC,
   et al.,
                    Respondents.
________________________________


Calendar Date:   September 14, 2016

Before:   McCarthy, J.P., Lynch, Rose, Devine and Mulvey, JJ.

                             __________


      Bowitch & Coffey, LLC, Albany (Gary Bowitch of counsel) and
Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (John D.
Wright of counsel), for appellants.

      Donald Zee, PC, Albany (Andrew Brick of counsel), for
Coeymans Recycling Center, LLC, respondent.

      Rizzo & Kelley, Poughkeepsie (James P. Kelley of counsel),
for Central Hudson Gas & Electric Corporation, respondent.

      William J. Better, PC, Kinderhook (N. Daniel Reeder of
counsel), for TCI Realty of NY, LLC, respondent.

                             __________
                              -2-                521905

McCarthy, J.P.

      Appeal from a judgment of the Supreme Court (McDonough,
J.), entered July 22, 2015 in Albany County, which, in a combined
proceeding pursuant to CPLR article 78 and action for declaratory
judgment, granted certain respondents' motions to dismiss the
petition/complaint.

      In March 2014, respondent Town Board of the Town of
Coeymans (hereinafter the Town Board) enacted Local Law No. 4,
which reclassified the permitted use of nine contiguous parcels
from residential-agricultural use to industrial use. In
September 2014, petitioners commenced this combined CPLR article
78 proceeding and action for declaratory judgment against the
Town Board and respondent Coeymans Recycling Center, LLC
(hereinafter CRC), which had an interest in three of the affected
parcels and had previously lobbied for those parcels to be
rezoned to industrial use, seeking to annul Local Law No. 4 based
on, among other things, allegations that the procedures used to
adopt the ordinance violated the State Environmental Quality
Review Act. CRC and the Town Board both moved to dismiss the
petition/complaint on the basis that petitioners failed to join
necessary parties, namely, the property owners of the other
rezoned parcels whose property rights were affected by the
ordinance. Supreme Court denied the motion but determined that
the other property owners were necessary parties and ordered
petitioners to serve those property owners with a notice of
petition and petition.

      On May 11, 2015, petitioners filed an amended
petition/complaint that added as respondents the additional
parcel owners (hereinafter the newly-added respondents).
Thereafter, the Town Board and CRC, as well as several of the
newly-added respondents, separately moved to dismiss petitioners'
amended petition/complaint on the ground that the amended
petition/complaint was time-barred as to the newly-added
respondents under the four-month statute of limitations (see CPLR
217 [1]). Reserving their right to challenge on appeal Supreme
Court's previous determination that the newly-added respondents
were necessary parties, petitioners conceded both that they did
not timely serve the newly-added respondents and that, if the
                              -3-                521905

newly-added respondents were necessary parties, dismissal was
proper. Thereafter, Supreme Court dismissed the amended
petition/complaint on the ground that it was time-barred.
Petitioners appeal, and we reverse.

      The newly-added respondents were not necessary parties
merely because the ordinance at issue affected their property
rights. "'[T]he absence of a necessary party may be raised at
any stage of the proceedings, by any party or by the court on its
own motion'" (Bayview Loan Servicing, LLC v Sulyman, 130 AD3d
1197, 1198 [2015], quoting Matter of Estate of Prospect v New
York State Teachers' Retirement Sys., 13 AD3d 699, 700 [2004]).
Given a court's power to raise the issue, it is notable that the
Court of Appeals and this state's appellate courts, including
this Court, have long entertained challenges to municipalities'
legislative actions in regard to zoning ordinances without
requiring the joinder of every property owner whose rights are
affected by the ordinance at issue (see Matter of Gernatt Asphalt
Prods. v Town of Sardinia, 87 NY2d 668, 675 [1996]; Berenson v
Town of New Castle, 38 NY2d 102, 105 [1975]; Matter of Fine
Assoc. v Board of Trustees of Vil. of Elmsford, 228 AD2d 437, 437
[1996]; Continental Bldg. Co. v Town of N. Salem, 211 AD2d 88, 91
[1995] appeal dismissed and lv denied 86 NY2d 818 [1995]; Matter
of Albany Area Bldrs. Assn. v Town of Clifton Park, 172 AD2d 54,
55 [1991]). This has been true even when the ordinance at issue
is one that, on its face, is likely to dramatically affect the
property rights held by real property owners (see e.g. Matter of
Wallach v Town of Dryden, 23 NY3d 728, 740 [2014]). Although
this Court has, in limited cases, found property owners to be
necessary parties in regard to legal challenges to municipal
ordinances that affect the property owners' rights, it has only
done so in cases where the owners had obtained an actual approval
pursuant to the challenged zoning ordinance that would be
adversely impacted by a judgment annulling that ordinance (see
Matter of Basha Kill Area Assn. v Town Bd. of Town of Mamakating,
302 AD2d 662, 664 [2003]; Matter of Llana v Town of Pittstown,
234 AD2d 881, 884 [1996]).

      Petitioners do not ask this Court to revisit its previous
holdings as to the limited circumstances in which property owners
may be necessary parties when an ordinance that affects their
                              -4-                  521905

rights is challenged. Instead, they argue that the newly-added
respondents do not fall into that previously recognized category
and that those cases do not stand for the principle that persons
affected by a municipality's ordinances are de facto necessary
parties when those ordinances are challenged. We agree, as we
are unconvinced that the Court of Appeals and the appellate
courts of this state have repeatedly overlooked necessary parties
in proceedings and/or actions in which municipal zoning
ordinances were challenged without joining all real property
owners affected by the ordinances. Thus, as the record does not
establish that the newly-added respondents fall into the limited
category that this Court has previously recognized as necessary
parties, and as we decline the opportunity to adopt a rule that
those affected by an ordinance are necessary parties when that
ordinance is challenged, we find that the newly-added respondents
are not necessary parties and that, therefore, the petition was
not time-barred. Accordingly, we reverse and remit for further
proceedings.

     Lynch, Rose, Devine and Mulvey, JJ., concur.



      ORDERED that the judgment is reversed, on the law, without
costs, and matter remitted to the Supreme Court for further
proceedings not inconsistent with this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
