Delle v. Kampe

Jul 15, 2002
Versions:296 A.D.2d 498
745 N.Y.S.2d 480
2002 N.Y. App. Div. LEXIS 7509

In a proceeding pursuant to CPLR article 78 to review a determination of the *499respondents, dated April 1, 2000, which denied the petitioner’s request for, among other relief, reinstatement to Civil Service Examination Eligible List No. 68-442, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Bucaria, J.), entered November 22, 2000, which, upon an order of the same court, dated September 5, 2000, granting the respondents’ cross motion to dismiss the proceeding, denied the petition and dismissed the proceeding. The appeal brings up for review so much of an order of the same court, entered July 2, 2001, as, upon reargument, adhered to the original determination (see CPLR 5517 [1]).

Ordered that the appeal from the judgment is dismissed, as the judgment was superseded by the order entered July 2, 2001, made upon reargument; and it is further,

Ordered that the order entered July 2, 2001, is reversed insofar as reviewed, on the law, the order dated September 5, 2000, and the judgment are vacated, the cross motion is denied, the petition is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith; and it is further,

Ordered that one bill of costs is awarded to the appellant.

The Supreme Court improperly granted the respondents’ cross motion to dismiss the proceeding based on the petitioner’s failure to serve a notice of claim. The petitioner’s request for relief “presents the classic formulation of an article 78 proceeding and ‘whether the determination was made in violation of lawful procedure, was affected by error of law or was arbitrary and capricious or an abuse of discretion’ (CPLR 7803 [3])” (Foster v City of New York, 157 AD2d 516, 518; see Matter of Rodriguez v City of Yonkers, 279 AD2d 632; Broderick v Board of Educ., Roosevelt Union Free School Dist., 253 AD2d 836, 837). Under such circumstances, a notice of claim is not required (see Matter of Piaggone v Board of Educ., Floral Park-Bellrose Union Free School Dist., 92 AD2d 106, 109 [a notice of claim is not a condition precedent to a special proceeding properly brought pursuant to CPLR article 78 seeking either judicial enforcement of such duty or judicial review of a prior adjudication by an administrative agency]). Ritter, J.P., Florio, Friedmann and Cozier, JJ., concur.