Chem-Trol Pollution Services, Inc. v. Ingraham

71 Misc. 2d 678, 336 N.Y.S.2d 294, 1972 N.Y. Misc. LEXIS 1538

• Court: New York Supreme Court
• Decided: September 26, 1972
• Status: Published

Opinion

Arthur J. Cosgrove, J.

This is a proceeding under article 78 of the CPLR to review a determination made by the Commissioner of Health of the .State of New York. The proceeding was commenced by an order to show cause granted August 30,1972. The Attorney-General’s office has appeared specially and seeks dismissal because the order to show cause was not served upon the Attorney-General pursuant to the provisions of chapter 752 of the Laws of 1972 (eff. May 30, 1972) which amended CPLR 7804 (subd. [c]) by requiring that when a proceeding pursuant to article 78 of the CPLR is commenced against a State body or officers, “ the order to show cause or notice of petition must be served upon the attorney general by delivery of such order or notice to an assistant attorney general at an office of the attorney general in the county in which verme of the proceeding is designated

This court agrees that the purpose of this new law was to give notice to the Attorney-General’s office of any proceeding commenced against a body or officer of the State so as to prevent prejudice where there are short time periods for the State to act in the myriad matters that are commenced against it. In this case it is undisputed that there was notice to the Attorney-General’s office and that no prejudice occurred because of the method of service. However sympathetic the court is to the plight of the petitioner, the language of the statute is absolute and the court must find that a jurisdictional defect exists in the service of the petition herein and dismiss the petition accordingly.

Motion to dismiss granted without prejudice to commence a new proceeding.

Submit order.