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THE ARTICLE 78 PETITION SOUGHT RELIEF NOT AVAILABLE IN SUCH A PROCEEDING (REMOVAL OF A TERRACE CONSTRUCTED ABOVE PETITIONER’S RESIDENCE); THE APPELLATE COURT CONVERTED THE PETITION TO A COMPLAINT PURSUANT TO CPLR 103 (SECOND DEPT).

The Second Department determined the Article 78 petition seeking the removal of a terrace constructed above petitioner’s property sought relief not available pursuant to Article 78 but converted the petition to a complaint pursuant to CPLR 103[c]:

RPAPL 871(1) authorizes the owner of any legal estate in land to maintain an action for an injunction directing the removal of a structure encroaching on such land. “Even where the facts which would justify the grant of [such] an extraordinary remedy are established, the court must still decide whether, in the exercise of a sound discretion, it should grant the remedy, and if granted, the terms and conditions which should be annexed to it” … . Consequently, that branch of the petition which was to compel the respondents to remove the terrace did not seek the performance of a purely ministerial act which can be obtained in a CPLR article 78 proceeding … .

Pursuant to CPLR 103(c), however, a proceeding should not be dismissed “solely because it is not brought in the proper form,” and this Court has the power to convert a proceeding into the proper form … . Under the circumstances, we convert so much of the proceeding as sought to compel the respondents to remove the terrace into an action, deem that branch of the petition which was to compel the respondents to remove the terrace to be the complaint, and remit the matter to the Supreme Court, Queens County, for further proceedings on the complaint. Matter of Dicker v Glen Oaks Vil. Owners, Inc., 2023 NY Slip Op 01673, Second Dept 3-29-23

Practice Point: An Article 78 proceeding is not appropriate for relief beyond a ministerial act, here the removal of a terrace constructed above petitioner’s residence. Here the appellate court converted the petition to a complaint seeking that relief pursuant to CPLR 103.

 

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