The following papers, numbered 1 to 15, were read onthis application by petitioners for a Preliminary Injunction prohibiting the Respondents from granting any change of use or [*2]occupancy at the premises known as "Blockbuster Video" at 9 North Airmont Road, Airmont, New York (hereinafter the "subject property"); and on the separate Cross-Motions of Respondents and Mark Fried, an Interested Person, for an order denying the petition and the Petitioners' request for a Preliminary Injunction and dismissing the petition:

Order to Show Cause/Affirmation/Affidavits(2)/Exhibit(A-H)-1-4

Notice of Cross-Motion/Affirmation/Affidavits(2)/Exhibits(A-F)-5-8

Affirmation in Opposition to Cross-Motion/Exhibits(A-D)-9

Notice of Cross-Motion/Affirmation/Affidavits(2)/Exhibits(1-3)-10-13

Attorney's Affirmation in Reply-14

Memorandum of Law (Mark Fried)-15

Upon the foregoing papers, it is ORDERED that these applications are disposed of as follows:

Petitioners seek a preliminary injunction prohibiting Respondents from granting any change of use or occupancy at the subject premises. Petitioners challenge a February 24, 2011. Resolution which approved a revised site plan and a conditional use permit for the subject property. It is Petitioners' contention that the land use approval process was flawed and that the approval was arbitrary and capricious and in violation of lawful procedure as well as an abuse of discretion.

Respondent Village of Airmont and Interested Person Mark Fried ("Fried") each oppose the Petition and separately state that the relief sought by Petitioners is moot in that the approvals in issue have already been granted to Fried. Respondents Village of Airmont and Fried have also cross-moved for an order dismissing the petition, each contending that Petitioners lack standing, that the statute of limitations expired prior to the commencement of the proceeding and that Petitioners failed to name or serve a necessary party. They also contend that Petitioners failed to exhaust their administrative remedies before proceeding with this matter and have failed to state a cause of action.

Respondents cross-move for an order dismissing the instant petition on the grounds that the applicable statute of limitations expired prior to the commencement of the instant proceeding.

According to Respondents, the instant proceeding was commenced after the 30-day statute of limitations had ran. In support of this position, Respondents offer the affidavit of Camille Guido-Downey, Clerk of the Planning Board of the Village of Airmont. In her affidavit, she outlines her involvement in the Planning Board action Petitioners seek to challenge. Ms. Guido-Downy states that Chairman Doug Whipple signed a February 24, 2011 resolution that, inter alia, approved an amended site plan and conditional use permit for the subject property. She further stated that she filed the February 24, 2011 resolution in her office on March 3, 2011.^[FN1] Given this operative date, Respondent asserts that Petitioners had to commence the instant proceeding by April 4, 2011 and since it was not [*3]commenced until April 5, 2011, it must be dismissed in its entirety.^[FN2] To this end, Respondents contend that this proceeding is time-barred because both Village Law § 7-725-a(11)) and Airmont Village Code § 210-94 state that Article 78 proceedings "shall be instituted within thirty 30 days after the filing of a decision in the office of the Village Clerk."

Petitioners state that an Article 78 proceeding bearing Rockland County Index Number 2139/11 was timely commenced on March 11, 2011, well within the 30 day statute of limitations. Thereafter, Respondents removed the proceeding to the U.S. District Court for the Southern District of New York under 28 U.S.C. §1441 based upon alleged violations of the Equal Protection Clause and 42 U.S.C. §1983. Subsequent to removal, counsel for Petitioners filed a "Notice of Voluntary Dismissal Pursuant to F.R.C.P. 41(a)(1)(A)(I)" dated April 1, 2011. Given this, Petitioners contend that the commencement, removal and voluntary dismissal of this proceeding confers the benefits of CPLR §205, including the ability to commence the instant proceeding within six months of the voluntary dismissal.

As to special use permits, "[a]ny person aggrieved by a decision of the planning board or such other designated body or any officer, department, board or bureau of the village may apply to the supreme court for review by a proceeding under article seventy-eight of the civil practice law and rules. Such proceedings shall be instituted within thirty days after the filing of a decision by such board in the office of the village clerk." NY Village Law §7-725-b(9). The pertinent provisions regarding site plan review and planning board decisions contain identical language. NY Village Law §§7-725-a(11), 7-740.

"If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the

plaintiff...may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period. CPLR §205 [emphasis added]. "For any number of reasons a plaintiff or any party who has asserted a claim may want to withdraw it. When he withdraws it voluntarily, New York practice calls the withdrawal a discontinuance'. The Federal Rules of Civil Procedure call it a voluntary dismissal', see FRCP Rule 41(a)." Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3217:1.

The Appellate Division, Second Department, has held that "[a]lthough a court can extend the time for doing certain acts (CPLR 2004), it cannot extend the time limited by law for the commencement of an action (CPLR 201). The 30-day time requirement for institution of a proceeding against the Zoning Board of Appeals (Town Law § 267) is clearly a Statute [*4]of Limitations." Sengstacken v. Zoning Bd. of Appeals of Town of Ramapo, 87 AD2d 651, 652 [2d Dept 1982]. In another case, the court held that "[t]he proper procedural vehicle to make this challenge was a proceeding pursuant to CPLR article 78, governed in this instance by a 30-day Statute of Limitations. Since the action was not commenced within that period, it was properly dismissed." Rembar v. Rose, 191 AD2d 487, 487 [2d Dept 1993][internal citations omitted].

Given the fact that Petitioners' voluntarily "dismissed" their federal action, they may not avail themselves of the benefits of CPLR §205. In addition, given the March 3, 2011 date on which the Planning Board Resolution was filed, a timely Article 78 proceeding would have to have been filed no later than April 4, 2011. Given the undisputed fact that the petition was filed on April 5, 2011, the instant proceeding is untimely. Accordingly, Respondents' motions to dismiss this proceeding pursuant to CPLR 3211(a)(5) based upon the applicable statute of limitations is granted. The parties remaining contentions need not be addressed in light of the Court's foregoing determination.

Dated:New City, New York

November 7, 2011

E n t e r :

___________________________

Hon. Alfred J. Weiner JSC