Sipala v. Zoning Board of Appeals , 2 Misc. 2d 1048 ( 1956 )

Howard T. Hogan, J.

Respondent moves pursuant to section 1293 of the Civil Practice Act to dismiss a petition brought under article 78 of the Civil Practice Act, on the ground that the proceeding is barred by subdivision 7 of section 267 of the Town Law. It appears that the decision sought to be reviewed was filed by respondent on December 5, 1955. Thereafter, on January 3, 1956 petitioner obtained an order to show cause why said decision should not be reviewed. Service was made on the clerk of the respondent board on January 6, 1956, 32 days after the filing of the decision.

Subdivision 7 of section 267 of the Town Law provides that a proceeding of this nature must be instituted within 30 days after the decision to be reviewed has been filed in the office of the town clerk. It thus becomes necessary to determine whether the proceeding was instituted within the meaning of the statute when the order to show cause was signed or when it was served. This precise question was resolved by Mr. Justice Eder of this court in Matter of Brown v. City of New York (198 Misc. 147, 148) when he said: “ The signing of the order to show cause was not the commencement of the proceeding; the proceeding is instituted by the service of the petition and notice or order to show cause (Civ. Prac. Act, § 1289; Matter of Levine v. Lending, 176 Misc. 462). The court could not extend the tolling of the statute by a provision for service outside the period of commencement prescribed by section 1286 ”.

Accordingly, respondent’s motion is granted and the petition is dismissed.