You are here: / / THE RELATION-BACK DOCTRINE DID NOT APPLY TO SAVE THE AMENDED PETITION CHALLENGING...
,

THE RELATION-BACK DOCTRINE DID NOT APPLY TO SAVE THE AMENDED PETITION CHALLENGING A USE VARIANCE; THE INTITIAL PETITION FAILED TO NAME A NECESSARY PARTY WHO WAS KNOWN TO THE PETITIONERS AND WAS DISMISSED ON THAT GROUND; THE AMENDED PEITITION, WHICH NAMED THE NECESSARY PARTY, WAS DISMISSED AS TIME-BARRED; BECAUSE THE PETITIONERS HAD NO DOUBT ABOUT WHO THE NECESSARY PARTY WAS AND HAD NAMED HER IN A PRIOR PETITION, THE RELATION-BACK DOCTRINE COULD NOT BE INVOKED (THIRD DEPT).

The Third Department, over an extensive dissent, determined the relation-back doctrine did not save the petition challenging a use variance. The initial petition was dismissed for failure to name a necessary party, Rosa Kuehn. The subsequent amended petition, which included the necessary party, was dismissed as time-barred:

Supreme Court correctly determined that petitioners are not entitled to the benefit of the relation back doctrine. That doctrine “permits a petitioner to amend a petition to add a respondent even though the statute of limitations has expired at the time of amendment so long as the petitioner can demonstrate three things: (1) that the claims arose out of the same occurrence, (2) that the later-added respondent is united in interest with a previously named respondent, and (3) that the later-added respondent knew or should have known that, but for a mistake by petitioners as to the later-added respondent’s identity, the proceeding would have also been brought against him or her” … .

… [P]etitioners simply cannot meet the third and final condition and therefore cannot avail themselves of the doctrine. Indeed, Rosa Kuehn was appropriately named as a respondent and identified as the landowner of the subject property in petitioners’ successful challenge to the use variance issued in 2013 … ; “thus, this simply is not an instance where the identity of a respondent . . . was in doubt or there was some question regarding that party’s status” … . Matter of Nemeth v K-Tooling, 2022 NY Slip Op 03034, Third Department 5-4-22

Practice Point: Here a necessary party was not named in the petition and the petition was dismissed for that reason. The amended petition, which named the necessary party, was time-barred. The relation-back doctrine could not be invoked to save the amended petition because the identity of the necessary party was known to the petitioners who had named her in a related petition in 2013.

 

You might also like
CARRIER PROPERLY ORDERED TO PAY FOR CLAIMAINT’S PAIN TREATMENT WITH MEDICAL MARIJUANA (THIRD DEPT).
ROBERT F KENNEDY, JR’S NOMINATING PETITION DECLARED INVALID (THIRD DEPT).
Qualified Privilege in Defamation Action Against School District Explained
Evidence of Pornography Allowed as Molineux Evidence to Show Intent
PETITIONER-POLICE-OFFICER’S SLIP AND FALL ON BLACK ICE WAS A COMPENSABLE ACCIDENT UNDER THE RETIREMENT AND SOCIAL SECURITY LAW BECAUSE THE METEOROLOGICAL CONDITIONS WERE SUCH THAT THE PRESENCE OF BLACK ICE COULD NOT HAVE BEEN ANTICIPATED (THIRD DEPT).
QUESTIONS OF FACT WHETHER THE PLACEMENT OF A PROPANE HEATER IN DEFENDANT’S STORE CREATED A DANGEROUS CONDITION AND WAS A PROXIMATE CAUSE OF PLAINTIFF’S CLOTHING CATCHING FIRE (THIRD DEPT).
DURING THE PLEA COLLOQUY DEFENDANT NEGATED AN ELEMENT OF THE CRIME AND THE COURT DID NOT CONDUCT FURTHER INQUIRY, THE ERROR NEED NOT BE PRESERVED FOR CONSIDERATION ON APPEAL, PLEA VACATED (THIRD DEPT).
Defendant Could Properly Subpoena Documents Which May Support a Motion to Dismiss the Indictment in the Interest of Justice/There Was Evidence of a Policy Not to Prosecute Native Americans for Tax Law Violations Relating to Cigarettes

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT’S UNTIMELY ANSWER WAS REJECTED BY PLAINTIFF BUT PLAINTIFF DEEMED... WHETHER DEFENDANT’S CONNECTICUT CONVICTION CAN SERVE AS A PREDICATE FOR...