You are here: / / AFTER CONVERTING THE ARTICLE 78 PETITION TO A COMPLAINT THE JUDGE SHOULD...
,

AFTER CONVERTING THE ARTICLE 78 PETITION TO A COMPLAINT THE JUDGE SHOULD NOT HAVE TREATED THE MOTION TO DISMISS AS A SUMMARY JUDGMENT MOTION WITHOUT NOTIFYING THE PARTIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge, after converting the article 78 petition to a complaint, should not have, sua sponte, dismissed the complaint without notifying the parties:

… [T]he Supreme Court denied the Comptroller’s motion to dismiss, and, pursuant to CPLR 103(c), converted the article 78 petition into a complaint asserting a declaratory judgment cause of action. Upon reaching the merits of the plaintiff’s complaint, the court sua sponte denied the plaintiff declaratory relief and directed dismissal of the complaint. …

Upon converting the article 78 petition into a complaint, the Supreme Court erred in reaching the merits of the complaint, and directing its dismissal. Having converted the petition to a complaint, the court could only reach the merits by giving the parties adequate notice that it was going to treat the defendant’s pre-answer motion to dismiss as one for summary judgment (see CPLR 3211[c] …). The defendant had not served an answer to either the petition or the complaint, and therefore, any motion for summary judgment would have been premature (see CPLR 3212[a]). Moreover, the record does not establish that the parties deliberately charted a summary judgment course … . Under these circumstances, the court’s determination on the merits of the complaint was premature. Matter of Gorelick v Suffolk County Comptroller’s Off., 2020 NY Slip Op 05048, Second Dept 9-23-20

 

You might also like
Excessive Corporal Punishment Constituted Neglect and Derivative Neglect
NO NEW INJURIES WERE ALLEGED, THE DOCUMENT WAS A SUPPLEMENTAL, NOT AN AMENDED, BILL OF PARTICULARS, LEAVE OF COURT NOT REQUIRED.
AN ORDER REQUIRING COMPLIANCE WITH DISCOVERY DEMANDS WHICH WAS NOT SERVED ON THE DEFENDANT BY THE PLAINTIFF IS NOT ENFORCEABLE (SECOND DEPT).
HERE THE FAILURE TO OPPOSE THE MOTION FOR SUMMARY JUDGMENT WAS DUE TO NEGLECT WHICH DOES NOT WARRANT VACATUR; THE MOTION TO VACATE THE ORDER ENTERED ON PLAINTIFF’S DEFAULT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
CONFLICTING TESTIMONY ABOUT WHETHER A CO-WORKER WAS HOLDING THE LADDER PLAINTIFF WAS USING PRECLUDED SUMMARY JUDGMENT IN THIS LABOR LAW 240 (1) ACTION (SECOND DEPT).
Cause of Action for Fraudulent Concealment Must Allege a Basis for the Existence of a Duty to Disclose
PROSECUTOR’S REASONS FOR STRIKING TWO BLACK PROSPECTIVE JURORS WERE PRETEXTUAL, NEW TRIAL ORDERED (SECOND DEPT).
ABSENT A FINDING THE GUARDIAN OF THE PROPERTY OF AN INCAPACITATED PERSON FAILED TO PROPERLY DISCHARGE HER DUTIES, THE COURT SHOULD NOT HAVE ORDERED THE GUARDIAN TO PAY THE ACCOUNTANT WHO ASSISTED IN PREPARING THE FINAL ACCOUNT FROM HER OWN FUNDS (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE EXCESS INSURANCE CARRIER WAS NOT BARRED FROM RECOVERY OF THE AMOUNT IT CONTRIBUTED... MISBEHAVIOR CHARGES BASED UPON ITEMS ALLEGEDLY FOUND DURING A SEARCH OF PETITIONER’S...