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AFFIDAVIT AND ATTORNEY AFFIRMATION CONSTITUTED THE FUNCTIONAL EQUIVALENT OF A VERIFIED PETITION IN THIS ARTICLE 78 PROCEEDING, THEREFORE THE PROCEEDING SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that petitioner's affidavit and attorney affirmation constituted the equivalent of a verified petition. The motion to dismiss the Article 78 actions should not have been granted:

A verified petition is required to establish a jurisdictional predicate for a special proceeding (see CPLR 304[a]; 7804[c], [d] …). CPLR 304(a) provides that “[a] special proceeding is commenced by filing a petition.” CPLR 7804(c) provides that “a notice of petition, together with the petition and affidavits specified in the notice, shall be served on any adverse party at least twenty days before the time at which the petition is noticed to be heard.” However, a document that is not denominated a verified petition may satisfy CPLR 304 and 7804 if it is the functional equivalent of a verified petition … .

Here, none of the papers filed and served by the petitioner was denominated a verified petition. However, the petitioner's papers, particularly her affidavit and the affirmation of her attorney, gave notice as to what administrative action was being challenged, the events upon which the action was taken, the basis of the challenge, and the relief sought … . Therefore, the papers fulfilled the purposes of a verified petition and were the functional equivalent of a verified petition … . Matter of Levine v Suffolk County Dept. of Social Servs., 2018 NY Slip Op 06242, Second Dept 9-26-18

CIVIL PROCEDURE (AFFIDAVIT AND ATTORNEY AFFIRMATION CONSTITUTED THE FUNCTIONAL EQUIVALENT OF A VERIFIED PETITION IN THIS ARTICLE 78 PROCEEDING, THEREFORE THE PROCEEDING SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/CPLR 304 (AFFIDAVIT AND ATTORNEY AFFIRMATION CONSTITUTED THE FUNCTIONAL EQUIVALENT OF A VERIFIED PETITION IN THIS ARTICLE 78 PROCEEDING, THEREFORE THE PROCEEDING SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/CPLR 7804 (AFFIDAVIT AND ATTORNEY AFFIRMATION CONSTITUTED THE FUNCTIONAL EQUIVALENT OF A VERIFIED PETITION IN THIS ARTICLE 78 PROCEEDING, THEREFORE THE PROCEEDING SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))/VERIFIED PETITION (ARTICLE 78, CIVIL PROCEDURE, AFFIDAVIT AND ATTORNEY AFFIRMATION CONSTITUTED THE FUNCTIONAL EQUIVALENT OF A VERIFIED PETITION IN THIS ARTICLE 78 PROCEEDING, THEREFORE THE PROCEEDING SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT))

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