The Zoning Board of Appeals for the Town of Islip granted an application by nonparty Wetherall for area variances for a shed, outdoor shower stall, and garbage bin. Petitioners commenced the instant Article 78 proceeding to annul the ZBA's determination. Although the petition named Wetherall as Respondent, the Supreme Court granted Wetherall’s motion to dismiss, finding Petitioners' attempt to serve by the “affix and mail” method of CPLR 308(4) was defective as a matter of law. The Supreme Court then issued a decision to annul the ZBA's determination.

On appeal, the Appellate Division noted a court may excuse the failure to join a necessary party and let the action to continue in the interest of justice after evaluating the five factors in CPLR § 1001(b): “(1) whether the petitioner has another remedy if the action is dismissed for nonjoinder, (2) the prejudice that may accrue from nonjoinder to the respondent or to the nonjoined party, (3) whether and by whom prejudice might have been avoided or may in the future be avoided, (4) the feasibility of a protective provision, and (5) whether an effective judgment may be rendered in the absence of the nonjoined party.”

After weighing the five factors in § 1001(b), the Court concluded that Wetherall met these criteria and was indispensable. The Supreme Court should have therefore denied the part of the Petitioners' motion to compel the Building Commissioner for the Town of Islip to revoke that portion of the certificate of compliance relating to a shed and outdoor shower stall, as well as those sections relating to annulment of the determination granting the area variances for a shed and outdoor shower stall, and dismissed those portions of the proceeding.

The case was Feder v. Town of Islip Zoning Bd. of Appeals, 980 N.Y.S.2d 537 (App. Div. 2014).