In the Matter of Tara Homes, Inc., Petitioner, v. Frank M. Volz et al., Respondents, 44 Misc. 2d 171

Jack Stanislaw, J. The Board of Zoning Appeals of the Town of Babylon granted Tara Homes, Inc., lot area variances as to two separate plots. Both determinations are before the court in twin proceedings brought under

article 78 of the CPLR. Since the petitions are almost identical except as to the property the subject of each, and since the same objection in point of law is raised by respondent by motions to dismiss the two proceedings they can be most simply and conveniently disposed of in this one decision applicable to them jointly. Although Tara was permitted to build on plots 2,000 square feet less than minimum its simultaneous applications for correspondent variances as to front, side and rear yard areas and as to corner lot requirements were denied. Its petitions seek to review these partial denials.

Respondent was served on or about August 3, 1964 with petitions noticed to be heard August 18, 1964. Objection is raised pursuant to CPLR 7804, subd. (

c) which provides that petition and notice of petition “ shall he served on any adverse party at least twenty days before the time at which the petition is noticed to be heard.” (Emphasis supplied.) The language of the statute is clear and definite. There can be no mistaking the meaning and intent regarding service. Tara has acknowledged its inadvertence and would agree to extend to the board all the time that might be needed to answer. . Some defects or irregularities in

article 78 proceedings maybe disregarded under certain special and unusual circumstances (Matter of Bloeth v. Marks, 20 A D 2d 372), or when they are as minor as an incorrect label attached to an otherwise correct proceeding (Matter of Kohnberg v. Murdock, 4 A D 2d 750). But this cannot hold true of as definitive a mandate regarding service as we deal with here. The motions to dismiss these two petitions must be granted despite a temptation to treat the merits. Petitioner shall have leave to properly renew.