                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 30, 2014                   517959
________________________________

In the Matter of AYUDA RE
   FUNDING, LLC, et al.,
                    Appellants,
      v
                                            MEMORANDUM AND ORDER
TOWN OF LIBERTY et al.,
                    Respondents,
                    et al.,
                    Respondents.
________________________________


Calendar Date:   September 3, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.

                             __________


     Robert M. Cohen, Ballston Lake, for appellants.

      Kenneth C. Klein, Jeffersonville, for Town of Liberty and
others, respondents.

      Law Offices of Brian P. Rourke, PC, Liberty (John R.
Theadore of counsel), for Jon Sutherland and another,
respondents.

                             __________


Peters, P.J.

      Appeal from a judgment of the Supreme Court (Cahill, J.),
entered March 4, 2013 in Sullivan County, which, in a proceeding
pursuant to CPLR article 78, granted respondents' motion to
dismiss the amended petition.

      In 2011, respondent Town of Liberty enacted Local Law No. 2
(2011), entitled "A Local Law Correcting Errors in the Zoning Map
With Respect to Tax Map Parcels 13.-1-7.1, 13.-1-7.2, 18.-1-31,
                               -2-                517959

18.-1-36.2, 20.-3-6 and 20.-3-8." Petitioners subsequently
commenced this proceeding seeking to annul such law, naming as
respondents the Town, respondent Gary Zalkin (doing business as
Liberty Scrap Metal) and respondent Ben Weitsman and Son, Inc.
(hereinafter collectively referred to as the original
respondents). The original respondents moved to dismiss the
petition on the ground that petitioners failed to name as
necessary parties the owners of the parcels of real property
affected by the zoning law. Supreme Court agreed and ordered
petitioners to file and serve an amended petition adding such
property owners as respondents.1 By the time the amended
petition adding these parties (hereinafter referred to as the
later-added respondents) was filed, the statute of limitations
had expired. Supreme Court dismissed the petition against the
later-added respondents on statute of limitation grounds and, as
a result thereof, dismissed the remainder of the petition against
the original respondents due to petitioners' failure to timely
join necessary parties. This appeal by petitioners ensued.

      As the statute of limitations had expired prior to the time
the later-added respondents were joined, dismissal of the
proceeding against them was warranted unless petitioners could
establish their entitlement to relief pursuant to the relation
back doctrine (see CPLR 203 [b]; Buran v Coupal, 87 NY2d 173, 177
[1995]). To avail themselves of the benefit of the doctrine,
petitioners were required to demonstrate (1) that the claims
arose out of the same occurrence, (2) that the later-added
respondents were united in interest with the original
respondents, and (3) that the later-added respondents knew or
should have known that, but for a mistake by petitioners as to
the identity of the proper parties, the proceeding would have
been brought against them as well (see Buran v Coupal, 87 NY2d at
178; Mongardi v BJ's Wholesale Club, Inc., 45 AD3d 1149, 1150
[2007]; De Sanna v Rockefeller Ctr., Inc., 9 AD3d 596, 597-598
[2004]).



     1
        Petitioners did not appeal this judgment, and therefore
the issue as to whether the later-added respondents were
necessary parties is not before us.
                              -3-                517959

      Petitioners failed to establish the second and third prongs
of the doctrine. Unity of interest is demonstrated where "the
interest of the parties in the subject-matter is such that they
[will] stand or fall together and that judgment against one will
similarly affect the other" (De Sanna v Rockefeller Ctr., Inc., 9
AD3d at 598 [internal quotation marks and citations omitted]; see
Mondello v New York Blood Ctr.–Greater N.Y. Blood Program, 80
NY2d 219, 226 [1992]; Mongardi v BJ's Wholesale Club, Inc., 45
AD3d at 1151; Zehnick v Meadowbrook II Assoc., 20 AD3d 793, 796
[2005], lv dismissed 5 NY3d 873 [2005]). Here, the original
respondents consist of the municipality that enacted the zoning
law at issue and the entities that purportedly sought the zoning
changes, whereas the later-added respondents are the owners of
the real property affected by the zoning changes. Thus, it is
apparent that the original respondents do not have the same
interests in the zoning changes as the later-added respondents
(see Matter of Red Hook/Gowanus Chamber of Commerce v New York
City Bd. of Stds. & Appeals, 5 NY3d 452, 457 [2005]; Matter of
Emmett v Town of Edmeston, 2 NY3d 817, 818 [2004]; Matter of
Chalian v Malone, 307 AD2d 619, 621 [2003]). Nor can
petitioners' failure to name the later-added respondents in the
first instance be viewed as a mistake as to the identity of the
proper parties. In an affidavit submitted by petitioners'
counsel, he conceded that there were more parties that could have
been named in the proceeding, but that petitioners chose to name
the "most important" ones. As petitioners were fully aware of
the existence of these property owners but "failed to appreciate
that [they] were legally required to be named in proceedings of
this type," petitioners' error was not encompassed by the
doctrine (Windy Ridge Farm v Assessor of Town of Shandaken, 45
AD3d 1099, 1100 [2007], affd 11 NY3d 725 [2008]; see Buran v
Coupal, 87 NY2d at 181; Mongardi v BJ's Wholesale Club, Inc., 45
AD3d at 1151; State of New York v Gruzen Partnership, 239 AD2d
735, 736 [1997]; Matter of Baker v Town of Roxbury, 220 AD2d 961,
963-964 [1995], lv denied 87 NY2d 807 [1996]).

      Finally, inasmuch as the later-added respondents were
subject to Supreme Court's jurisdiction and raised a valid
statute of limitations defense, the court properly dismissed the
petition for failure to join necessary parties without
consideration of the discretionary factors set forth in CPLR 1001
                              -4-                  517959

(b) (see Matter of Windy Ridge Farm v Assessor of Town of
Shandaken, 11 NY3d 725, 727 [2008]; Matter of Alexy v Otte, 58
AD3d 967, 967-968 [2009]; Matter of Romeo v New York State Dept.
of Educ., 41 AD3d 1102, 1104-1105 [2007]; see also Swezey v
Merrill Lynch, Pierce, Fenner & Smith, Inc., 19 NY3d 543, 554 n 8
[2012]).

     Lahtinen, Garry, Rose and Clark, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
