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Civil Procedure, Municipal Law

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

 

 

May 15, 2013
Tags: Second Department
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THE JURY NOTES SHOULD HAVE BEEN READ VERBATIM TO COUNSEL, NOT PARAPHRASED BY THE JUDGE; THIS MODE OF PROCEEDINGS ERROR REQUIRES REVERSAL (SECOND DEPT).
SUPREME COURT CORRECTLY DETERMINED THE HIGHEST AND BEST USE BASED ON THE ASSUMPTION THE PROPERTY WOULD HAVE BEEN REZONED, RAISING THE VALUE OF THE PROPERTY.
AFFIDAVIT ALLEGING DEFENDANT MOVED ITS OFFICE AND FAILED TO INFORM THE SECRETARY OF STATE (AND THEREFORE DID NOT RECEIVE THE SUMMONS) WAS DEEMED INSUFFICIENT TO ALLOW IT TO DEFEND AN ACTION PURSUANT TO CPLR 317, SUPREME COURT REVERSED (SECOND DEPT).
PROOF OF GENERAL CLEANING PRACTICES DID NOT DEMONSTRATE A LACK OF CONSTRUCTIVE NOTICE OF THE WATER WHERE PLAINTIFF SLIPPED AND FELL, DEFENDANT’S SUMMARY JUDGMENT MOTION PROPERLY DENIED.
DEFENDANT PROPERLY REJECTED THE MACHINES AS NONCONFORMING GOODS, PLAINTIFF DID NOT CURE THE NONCONFORMITY, AND DEFENDANT WAS ENTITLED TO CONSEQUENTIAL DAMAGES AND LOST PROFITS (SECOND DEPT). ​
In Consolidated Actions Started in Different Counties, the County Where the First Action Was Brought is the Proper Venue
PLAINTIFF ALLEGED HE WAS SEXUALLY ABUSED BY A PRIEST WHILE ATTENDING DEFENDANT’S SCHOOL; THE COMPLAINT STATED CAUSES OF ACTION FOR NEGLIGENT HIRING, NEGLIGENT SUPERVISION AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (SECOND DEPT).
BURGLARY SECOND COUNT DISMISSED AS A LESSER INCLUDED CONCURRENT COUNT OF BURGLARY FIRST (SECOND DEPT).

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