Oluwo v. Ruddy

Appellate Division of the Supreme Court of New York

Oluwo v. Ruddy

204 A.D.2d 521, 612 N.Y.S.2d 184, 1994 N.Y. App. Div. LEXIS 5297

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 16, 1994

StatusPublished

This text of 204 A.D.2d 521 (Oluwo v. Ruddy) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Oluwo v. Ruddy, 204 A.D.2d 521, 612 N.Y.S.2d 184, 1994 N.Y. App. Div. LEXIS 5297 (N.Y. Ct. App. 1994).

Pincite

Opinion

—In an action, inter alia, to recover damages for libel, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Held, J.), dated June 2, 1992, which denied his petition for relief pursuant to CPLR article 78.

Ordered that the judgment is modified, on the law, by deleting the provision thereof denying the petition and substituting therefor a provision dismissing the petition; as so modified, the judgment is affirmed, with costs to the respondents.

The appellant commenced this libel action against the de[522]*522fendant Francis M. Ruddy and shortly thereafter moved for a preliminary injunction. That motion was denied, as was a subsequent motion to reargue. The appellant then served what purported to be a petition for relief pursuant to CPLR article 78, bearing the same index number as the libel action and adding the New York State Insurance Department as a "defendant”.

The appellant’s service of a petition in the context of this plenary action was improper. A proceeding pursuant to CPLR article 78 is a separate special proceeding (see, CPLR 7804). Consequently, the petition must be dismissed. However, we note that the Supreme Court correctly found that the appellant failed to exhaust his administrative remedies. Bracken, J. P., Copertino, Altman and Friedmann, JJ., concur.

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—In an action, inter alia, to recover damages for libel, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Held, J.), dated June 2, 1992, which denied his petition for relief pursuant to CPLR article 78.

Ordered that the judgment is modified, on the law, by deleting the provision thereof denying the petition and substituting therefor a provision dismissing the petition; as so modified, the judgment is affirmed, with costs to the respondents.

The appellant commenced this libel action against the de[522]*522fendant Francis M. Ruddy and shortly thereafter moved for a preliminary injunction. That motion was denied, as was a subsequent motion to reargue. The appellant then served what purported to be a petition for relief pursuant to CPLR article 78, bearing the same index number as the libel action and adding the New York State Insurance Department as a "defendant”.

The appellant’s service of a petition in the context of this plenary action was improper. A proceeding pursuant to CPLR article 78 is a separate special proceeding (see, CPLR 7804). Consequently, the petition must be dismissed. However, we note that the Supreme Court correctly found that the appellant failed to exhaust his administrative remedies. Bracken, J. P., Copertino, Altman and Friedmann, JJ., concur.

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Bluebook (online)

204 A.D.2d 521, 612 N.Y.S.2d 184, 1994 N.Y. App. Div. LEXIS 5297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oluwo-v-ruddy-nyappdiv-1994.