Upon the foregoing papers, it is ORDERED that the cross motion to dismiss by respondents Horacio Salinas, Gaetano Salvatore, Pascale Ouattara, Watts Ouattara, Brian Durham, Warner Wada, Ford Wheeler, Sonja Wagner, Raeanne Giovanni-Inoue and Ezequiel De La Rosa and the cross motion to dismiss by respondent New York City Loft Board are granted; and it is further

ADJUDGED that the petition is denied and the proceeding is dismissed.

In this Article 78 proceeding, petitioner challenges Order No. 3457 dated September 18, 2008 of respondent New York City Loft Board (Loft Board). By Order No. 3457, the Loft Board accepted and modified the Report and Recommendation dated May 18, 2007 of Administrative Law Judge Tynia Richard. ALJ Richard found, among other things, that units 3F, 3R, 4F, 4R, 5F, 6, 9F, 9R, 11 and the combined unit 12 in the building owned by petitioner are covered under Article 7-C of the MultipleDwelling Law, i.e., the Loft Law, and that units 7 and 10 are not covered. ALJ Richard also found that the protected occupants of the units covered under the Loft Law were overcharged rent, but the Loft Board modified the amount of the overcharge. Order No. 3457 was allegedly mailed to petitioner on September 30, 2008.

On January 26, 2009, petitioner commenced this Article 78 proceeding against only the Loft Board in Supreme Court, Kings County, and the proceeding was subsequently transferred to New York County and assigned to this Court.

By decision, order, and judgment dated June 16, 2009, this Court granted the Loft Board's motion to dismiss the Article 78 proceeding for failure to join the tenants as necessary parties, and on the ground that joinder was futile because the statute of limitations had run against the tenants. By decision and order dated September 10, 2009, this Court denied petitioner's motion to reargue the Court's prior decision.

On appeal, the Appellate Division, First Department reversed this Court's decision and judgment and reinstated the petition, without prejudice to the assertion of the defense of the statute of limitations. 37 West Realty Co. v New York City Loft Bd., 72 AD3d 406 (1st Dept 2010). The Appellate Division reasoned that "the tenants whose units were specifically addressed in respondent's order . . . were necessary parties . . . and should be joined even if the limitations period has expired, without prejudice to interposing such a defense." Id. (citations omitted).

On April 27, 2010, petitioner served an amended notice of petition and amended petition, adding the tenants as respondents. The tenants cross-move to dismiss the petition as time-barred.

The tenants' cross motion and the Loft Board's motion to dismiss the petition is granted. The original petition was brought on January 26, 2009, days before the four month period of limitations had run, and the petition was not interposed against the tenants until April 2010, about 15 months after the filing of the original petition. The amended petition is therefore time-barred. [*2]

The Court rejects petitioner's argument that the amended petition should relate back to the original petition. As the Loft Board points out, the Court of Appeals rejected the notion that private parties are united in interest with a governmental body or officer in Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Standards and Appeals (5 NY3d 452 [2005]). In that case, the petitioner, a nonprofit organization, challenged the Board of Standards and Appeals's decision to grant a hardship variance to a developer that sought to convert a warehouse and manufacturing facility from industrial to residential use. The petitioner commenced an Article 78 proceeding naming only the Board of Standards and Appeals and the City of New York as respondents, omitting the developer. The Court of Appeals determined that the Supreme Court erred in treating the developer as being united in interest with the City:

"[W]hile both [a private developer] and the City had the same immediate purpose in opposing the article 78 petition—maintaining the status of the variance—that, in and of itself, does not create a unity of interest such that an action against [the developer] relates back to the filing date of the petition. The status of [the developer's property represented a potential loss of millions of dollars to the developer, while the City is necessarily concerned with regulatory and administrative consequences. Such divergent long-term interests cannot be guaranteed to protect [the developer] from future prejudice in the case."

Petitioner's argument that neither the Loft Board nor the tenants would be prejudiced by allowing the case to proceed, or petitioner's view that it cannot be said that the litigation is stale, are unavailing. The Legislature has established a bright-line four month period of limitations for Article 78 petitions, and that period has run here as to the tenants.

The fact that the tenants timely commenced their own Article 78 petition against the Loft Board is irrelevant to whether petitioner timely commenced this separate proceeding. Petitioner concedes the tenants seek judicial review of different aspects of the Loft Board's order. Jacobs Opp. Affirm. ¶ 40.

Finally, petitioner refers to "the phalanx of appellate authority holding that affected tenants are not necessary parties in a challenge to an administrative agency's ruling or where the Article 78 proceedings were permitted to proceed, without objection from the administrative agency, in absence of the affected tenants or landlords." Jacobs Opp. Affirm. ¶ 82. However, petitioner acknowledges that the Appellate Division, First Department ruled that the tenants are necessary parties, and that the Appellate Division's ruling constitutes law of the case. Id. ¶ 93. [*3]

Therefore, the tenant's cross motion to dismiss the petition is granted. Because the tenants have established their right to dismissal of the amended petition against them due to the expiration of the four-month limitations period, the entire case must be dismissed due to petitioners' failure to join necessary parties. See Windy Ridge Farm v Assessor of Town of Shandaken, 11 NY3d 725, 727 (2008) (case against Assessor was properly dismissed once additional respondents established the right to dismissal of amended petition as time-barred). Therefore, the Loft Board's cross motion to dismiss the petition is also granted.

Dated:9/2/10/s/,

J.S.C.

New York, New York