Commissioner of Community Development of City of Rochester v. Macro

144 A.D.2d 981

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1988
• Status: Published

Opinion

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: The court erred in finding that General City Law § 20 (22) authorized the institution of special proceedings. The mere reference to “proceeding” in the statute is insufficient to authorize the prosecution of a matter “in the form of a special proceeding” (CPLR 103 [b]). To authorize the use of a special proceeding, a statute must specifically refer to “special proceeding” or provide for the use of a petition (see, i.e., Business Corporation Law § 619; Mental Hygiene Law §§ 79.05, 79.07) or set forth a unique procedure to be employed in prosecution of the matter (see, i.e., Executive Law § 63 [12]; Judiciary Law §90).

Accordingly, we modify the order to direct that the matter be converted to a plenary action (see, CPLR 103 [c]); that the notice of petition and petition be treated as the summons and complaint, respectively; and that defendant serve an answer within 20 days of receipt of this court’s order. (Appeal from order of Monroe County Court, Maloy, J. — dismiss petition.) Present — Dillon, P. J., Callahan, Boomer, Balio and Lawton, JJ.