Blanchfield v. Town of Halfmoon

46 A.D.2d 930, 361 N.Y.S.2d 724, 1974 N.Y. App. Div. LEXIS 3472

Opinion

Appeal from an order of the Supreme Court at Special Term, entered November 9, 1973 in Saratoga -County, granting respondent permission to amend his petition in a proceeding pursuant to CPLR article 78. A notice of motion and an unverified petition was served upon appellant on October 23, 1973 seeking relief by way of CPLR article 78 from the denial of a variance by the Zoning Board of Appeals of the Town of Halfmoon. The matter was returnable at a Special Term of Supreme Court to he held on November 5, 1973. Appellant made a timely motion to dismiss for failure to effect service at least 20 days before the return date (CPLR 7804, subd. [e]). On the return day, Special Term treated the short notice as an irregularity, adjourned the matter and allowed respondent the opportunity to amend his petition to comply with the statute. Respondent’s failure to follow the clear mandate of the statute was not a mere irregularity, but a jurisdictional defect that left no room for the exercise of discretion by Special Term (Matter of Dickerson v. Jensen, 33 A D 2d 890). Order reversed, on the law,-and petition dismissed, without costs. Herlihy, P. J., Sweeney, Kane, Main and Reynolds, JJ., concur.