Motion pursuant to CPLR 3211[a][3], 7804[f] by the respondent Scotty's Marina for an order dismissing the petition on the ground that the Town of Hempstead lacks legal capacity to maintain the subject proceeding is granted.

The respondent Scotty's Marina owns a fishing station and restaurant in Point Lookout, New York, attached to which is a deck structure currently used for outdoor dining and drinking, which extends into Reynolds Channel and over submerged land owned by the petitioner, the Town of Hempstead (Pet. ¶¶ 3-5).

Scotty's applied to the Town of Hempstead Department of Buildings for, inter alia, permission to legalize the outdoor deck, but the application was denied by the Department on the ground that "under the zoning ordinance, a special exception from the Board [of Appeals] was necessary to legalize outdoor dining' on the deck" (Pet., ¶ 9).

Thereafter, Scotty's appealed the Building Department's [*2]determination to the respondent Board of Appeals of the Town of Hempstead which, after a hearing, granted the application.

By verified petition dated January 24, 2006, the Town of Hempstead commenced the within proceeding pursuant to CPLR article 78, for stated declaratory relief and a judgment annulling the Board's determination.

Scotty's now moves pre-answer, for an order dismissing the subject proceeding. Scotty's contends that the Town lacks legal capacity to maintain the proceeding since, inter alia, there was no pre-commencement, duly enacted, Town resolution approving and/or authorizing the institution of the within matter (Miller Aff., ¶¶ 3-6). The motion should be granted.

It is settled that "[c]apacity to sue is a threshold question involving the authority of a litigant to present a grievance for judicial review" which "often arises when a governmental entity seeks to bring suit" (Town of Riverhead v. New York State Bd. of Real Property Services, 5 NY3d 36, 41-42 [2005]; Matter of Graziano v County of Albany, 3 NY3d 475, 478-479 [2004] cf., City of New York v. State, 86 NY2d 286, 291-293 [1995]).

Indeed, since such entities are "artificial creatures of statute, * * * [they] have neither an inherent nor a common-law right to sue. Rather, their right to sue, if it exists at all, must be derived from the relevant enabling legislation or some other concrete statutory predicate'" (Town of Riverhead v. New York State Bd. of Real Property Services, supra, at 41-42, quoting from, Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148, 155-156 [1994] see also, City of New York v. City Civil Service Com'n, 60 NY2d 436, 445 [1983]).

Accordingly,"[n]either a village nor a town has the capacity to institute a legal proceeding except upon a resolution of its legislative body" and accordingly "[a]bsent authorization * * *, an action brought in the name of a town must be dismissed on the ground of lack of capacity to sue" (Pelham Council of Governing Boards v. City of Mount Vernon, 186 Misc 2d 301, 302, [Supreme Court, Westchester County 2000], affd, 302 AD2d 392 see also, Town Law, §§ 65, 135, 268; Town of Thompson v. Alleva, 76 AD2d 1022, 1023 see also, Town of Claverack v. Brew, 277 AD2d 807, 809 cf., Gersen v. Mills, 290 AD2d 839).

Applying the foregoing legal principles to the facts [*3]presented here, the Court agrees that the Town has failed to establish that it possesses capacity to maintain the subject proceeding. Notably, the Town concedes that an enabling resolution authorizing it "to bring a court action is necessary * * *" (Kovit Aff., ¶ 10)

A review of the record establishes that the verified petition contains no reference to the requisite, enabling resolution duly adopted by the Town Board (Town of Claverack v. Brew, supra; Town of Thompson v. Alleva, supra). Nor have the Town's opposing submissions demonstrated its capacity to maintain the proceeding.

Although the Town Board apparently adopted an authorizing resolution some seven months after this proceeding was commenced and well after expiration of the relevant limitations period the Court disagrees that the matter can be legitimized through an after-the-fact, or nunc pro tunc legislative enactment (cf., Mohrmann v. Kob, 291 NY181, 186 [1943]; Bright Homes, Inc. v. Weaver, 7 AD2d 352, 358, affd, 6 NY2d 973 [1959]).

Moreover, the Town's reliance upon Statutes § 172 is misplaced. Section 172 provides in general, that laws requiring a public "officer to do an act at a certain time, * * * [which are] inserted merely to secure system, uniformity and dispatch in public business" are to be viewed as "directory" actions only, and that delays in performing such "details" will not "invalidate a proceeding" or "terminate jurisdiction, unless a statute says so * * *" (see, Comment to § 172 see generally, King v. Carey, 57 NY2d 505, 512-515 [1982]; Matter of Janus Petroleum v. New York State Tax Appeals Tribunal, 180 AD2d 53, 56; Sinawski v. Cuevas, 123 AD2d 548, 549).

Here, however, the failure to timely adopt the necessary, authorizing resolution is not a "directory" action or mere "detail" intended to secure, inter alia, "system, uniformity and dispatch in public business," but rather, pertains to the fundamental issue of capacity a "threshold question involving the authority of a litigant to present a grievance for judicial review" (Town of Riverhead v. New York State Bd. of Real Property Services, supra, at 41-42).

Lastly, and to the extent that the Town makes reference to the "extension provisions" of CPLR 205[a] (e.g., Carrick v. Central General Hospital, 51 NY [1980]; George v. Mt. Sinai Hospital, 47 NY2d 170 [1979]) and its alleged entitlement to recommence the subject proceeding based thereon (Kovit Reply Aff., ¶¶ 4-10) the Court agrees that availability of that remedy is appropriately considered when and if the Town [*4]subsequently attempts to recommence the proceeding.

Accordingly, it is,

ORDERED that the motion by the respondent Scotty's Marina to dismiss the petition proceeding is granted.

The foregoing constitutes the decision and order of the Court.

Dated:________________________________________________

Kenneth A. Davis, J.S.C.