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THE PETITIONERS BROUGHT A HYBRID ARTICLE 78/DECLARATORY JUDGMENT ACTION CHALLENGING A LOCAL LAW PROHIBITING SHORT-TERM RENTAL PROPERTIES; THE COURT NOTED THAT THE SUMMARY PROCEDURE AVAILABLE UNDER ARTICLE 78 SHOULD NOT HAVE BEEN APPLIED TO THE DECLARATORY-JUDGMENT ACTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, noted that in a hybrid Article 78/declaratory judgment/damages action, the summary procedure under Article 78 does not apply to the declaratory judgment. In order to summarily dispose of the declaratory judgment/damages aspect of the action, a party must request it or the court must notify the parties. Here the petitioners, owners of short-term rental properties, challenged the local law prohibiting rental periods of less than 14 days:

“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 to recover damages and for declaratory relief, on the other hand. 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” … . “[W]here no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action”… .

Here, the record contains no indication that the Supreme Court gave notice to the parties that it was contemplating the summary dismissal of the declaratory judgment causes of action, or that the respondents/defendants had made an application for such relief. Therefore, the court erred in summarily disposing the causes of action for declaratory relief … . Matter of Jellyfish Props., LLC v Incorporated Vil. of Greenport, 2023 NY Slip Op 05136, Second Dept 10-11-23

Practice Point: In a hybrid Article 78/declaratory judgment action, the summary procedure available under Article 78 cannot be used to dispose of the declaratory judgment action unless a party requests it or the court so notifies the parties.

 

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