Hybrid Article 78 and Declaratory Judgment Proceeding Requires Separate Treatment of Both

In a hybrid proceeding— an Article 78 proceeding to review a Town Board’s stop work order for a quarry acting without a permit, and a related declaratory judgment action—the Second Department determined Supreme Court could not dismiss the declaratory judgment action as if it were part of the Article 78 proceeding.  The two actions must be treated as separate proceedings:

…[I]n the absence of a dispositive motion addressed to the causes of action which sought declaratory relief, the Supreme Court improperly, in effect, dismissed those causes of action …. In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those which seek declaratory relief, on the other hand (see id. at 1008). “The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment”…. “Thus, where no party makes a request for a summary determination of the causes of action which seek damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action”…. Here, since no party made such a motion, the Supreme Court should not have summarily disposed of the causes of action which sought declaratory relief, and the matter must be remitted … .  Matter of Lake St Granite Quarry, Inc v Town/Village of Harrison, 2013 NY Slip Op 03487, 2nd Dept, 5-15-13