You are here: / / AFFIDAVIT AND ATTORNEY AFFIRMATION CONSTITUTED THE FUNCTIONAL EQUIVALENT...

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))

You might also like
Statute of Limitations Defense Waived If Not Raised in a Timely Motion to Dismiss
Re: the Unsealing of the Grand Jury Proceedings Concerning Eric Garner’s Death at the Hands of the Police, a “Compelling and Particularized Need” for Disclosure Had Not Been Demonstrated—the Public Interest in Preserving Grand Jury Secrecy Outweighed the Public Interest in Disclosure
WIRES WHICH CAUSED PLAINTIFF TO TRIP AND FALL WERE INTEGRAL TO THE WORK BEING PERFORMED AND CANNOT THEREFORE BE CONSIDERED DEBRIS WITHIN THE MEANING OF THE INDUSTRIAL CODE; THE LABOR LAW 241(6) CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT).
WATER VALVE CAP OVER WHICH INFANT PLAINTIFF TRIPPED AND FELL WHILE PLAYING BASKETBALL IN THE STREET WAS A TRIVIAL DEFECT AS A MATTER OF LAW (SECOND DEPT). ​
THE DEPARTMENT OF HEALTH’S DETERMINATION THE 91-YEAR-OLD PETITIONER WAS NOT ENTITLED TO CONTINUOUS CARE WAS NOT SUPPORTED BY THE EVIDENCE (SECOND DEPT).
TO STATE A CAUSE OF ACTION FOR BREACH OF CONTRACT, THE PROVISIONS OF THE CONTRACT WHICH WERE ALLEGEDLY BREACHED MUST BE IDENTIFIED IN THE COMPLAINT; WHERE IT IS CONCEDED THAT A CONTRACT EXISTS, A CAUSE OF ACTION FOR QUASI CONTRACT MUST BE DISMISSED (SECOND DEPT).
A MOTION TO VACATE AN ORDER SHOULD BE TRANSFERRED TO THE JUDGE WHO MADE THE ORDER; THE JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT IN THIS FORECLOSURE ACTION (SECOND DEPT).
MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN DENIED SOLELY ON THE GROUND THAT THE AFFIDAVIT OF SERVICE WAS FILED IN THE WRONG COURT.

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

MOTION TO AMEND NOTICE OF CLAIM TO ADD THE ADDRESS OF PLAINTIFF’S SLIP... SCHOOL HAD ACTUAL KNOWLEDGE OF THE FACTS OF THE SLIP AND FALL CLAIM WITHIN 90...