42 Misc. 2d 211 | N.Y. Sup. Ct. | 1963
In this proceeding to review a determination made by the respondent McMorran as New York State Superintendent of Public Works, respondents move to dismiss the amended petition, and for summary judgment, pursuant to rules 3211 and 3212 of the Civil Practice Law and Bules. A motion heretofore made to dismiss the original petition was granted on June 17, 1963 (39 Mise 2d 716), on the ground that the determination sought to be reviewed was legislative in character and consequently could not be reviewed in a proceeding under article 78 of the Civil Practice Act, which only authorized proceedings to review determinations made by bodies or officers exercising judicial, quasi-judicial, administrative or corporate functions (Civ. Prac. Act, § 1284) and on the further ground that petitioners had not alleged that any special injury or damage to their personal or property rights had resulted or would result from the determination complained of. The amended petition, which is the subject of the present motion, does not demand any relief different from that demanded in the original petition nor does it allege any additional acts on the part of the respondents which are claimed to be illegal, or from which relief is sought. It does assert additional facts with respect to the interest of the petitioners in property which petitioners claim will be damaged by the determination sought to be reviewed. The petition, whether it seeks the relief heretofore available in a certiorari or mandamus proceeding, still seeks the review of a determination, and in my opinion may not be maintained, either as a proceeding pursuant to article 78 of the Civil Practice Act, or its successor, article 78 of the Civil Practice Law and Bules. The provisions of section 1284 of the Civil Practice Act have not been included in the Civil Practice Law and Buies. Article 78 of the new law and rules, however, still authorizes only proceedings to obtain relief previously obtained by writs of certiorari to review, mandamus, or prohibition, and the Notes of the Advisory Committee indicate that section 1284 of the Civil Practice Act was omitted as unnecessary because its definitions added nothing to the sense of the first sentence of section 7801 of the Civil Practice Law and Buies. However, the fact that the proceeding may not be maintained under article 78
An order may be submitted accordingly, which may provide that the proceeding may be continued as an action for a declaratory judgment and injunctive relief, that the amended petition may be deemed the complaint, and that the defendants may answer within 10 days (CPLR 3211, subd. [f]).