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No Article 78 Review Where Petitioner Defaulted

The Second Department noted that there can be no Article 78 review where the petitioner defaulted in the administrative proceeding.  Only the denial of the request to vacate the default can be reviewed:

“[A] petitioner is not aggrieved by an administrative determination made on his [or her] default and may not seek to review such a determination”… . Although the petitioner is not entitled to CPLR article 78 review of the Review Board’s determination to sustain the charges and revoke its registration, which was made upon its default, the Review Board’s determination to deny its application to vacate the default may be reviewed… .  Matter of Tony’s Towing Serv Inc v Swarts, 2013 NY Slip Op 05577, 2nd Dept 8-7-13

 

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THE MEDICAL RECORDS DID NOT PROVIDE NOTICE TO THE HOSPITAL OF A POTENTIAL MEDICAL MALPRACTICE ACTION AND PETITIONER FAILED TO SHOW THE HOSPITAL WOULD NOT BE PREJUDICED BY THE DELAY IN SERVING A NOTICE OF CLAIM; LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
PLAINTIFF TRIPPED AND FELL AS HE WALKED THROUGH A “ROOM,” NOT A “PASSAGEWAY;” THEREFORE THE LABOR LAW 241(6) CAUSE OF ACTION BASED ON THE INDUSTRIAL CODE PROVISION PROHIBITING OBSTRUCTIONS IN A “PASSAGEWAY” SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​
ARBITRATOR’S RULING WAS IRRATIONAL AND VIOLATED CPLR 1209 IN THIS NO-FAULT INSURANCE ACTION, HEALTH CARE PROVIDER, AS AN ASSIGNEE, WAS ENTITLED TO ARBITRATE ITS CLAIM FOR CARE PROVIDED TO THE INJURED INFANT (SECOND DEPT).
THE ARTICLE 78 PETITION SEEKING REVIEW OF THE DENIAL OF VARIANCES BY THE ZONING BOARD SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT PETITIONER DID NOT PROVIDE A TRANSCRIPT OF THE PROCEEDINGS, UNDER THE CPLR THE RESPONDENT MUST PROVIDE THE TRANSCRIPT (SECOND DEPT). ​
DEFENDANT WAS ENTITLED TO FURTHER INQUIRY TO DETERMINE WHETHER SHE VIOLATED THE PLEA AGREEMENT, COUNTY COURT DID NOT SENTENCE HER IN ACCORDANCE WITH THE PLEA AGREEMENT BASED SOLELY ON THE PROSECUTOR’S ASSERTION SHE DID NOT COMPLETE A MENTAL HEALTH COURT PROGRAM (SECOND DEPT).
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