Neighbors, environmental groups, municipalities, and others often object to issuance of a permit by the Department of Environmental Conservation ("DEC") or other approvals for a mining operation. Typically, such decisions can be challenged under CPLR Article 78. Environmental Conservation Law §23-2721, contained in the Mined Land Reclamation Law, specifically provides:
 

Any act, omission, determination or order of the department or of any officer or employee thereof, pursuant to or within the scope of this title, may be reviewed in accordance with article seventy-eight of the civil practice law and rules.
 

I. Preliminary Issues.
 

A. Citizen Groups. It is advisable for citizen groups to adopt a formal organization so they present a united front to the outside world, including the press, and their lawyer has a single contact, and does not have to deal with internal organizational conflicts. In order to limit liability, the best strategy is to incorporate a group under the Not-for-Profit Corporation Law prior to participation in DEC or court proceedings. Other advantages are the possibility that the group will qualify for tax-exempt status under Internal Revenue Code §501(c)(3) (so that donations may be tax deductible), the formalization of the organization, and insulation from liability for costs. Furthermore, while some members may have to be identified to demonstrate standing and comply with filing requirements with the New York State Attorney General, other members and supporters may invoke the First Amendment to remain anonymous behind the corporate veil. See NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 78 S.Ct. 1163 (1958).
 

B. Constitutional Protection. The First Amendment guarantees "the right of the people... to petition the Government for a redress of grievances" and "freedom of speech," and New York Constitution Article 1, §§8 and 9(1) provide similar guarantees. Thus, statements made in the course of participation in administrative and legal proceedings may be constitutionally protected. Allan & Allan Arts, Ltd. v. Rosenblum, 201 A.D.2d 136, 615 N.Y.S.2d 410 (2d Dep't 1994), mot. den'd 85 N.Y.S.2d 921, 627 N.Y.S.2d 319 (1995). Furthermore, under the Noerr-Pennington doctrine, see Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S.127 (1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965), participation of citizens in administrative and legal challenges against a project are constitutionally protected, even if funded by a competitor, unless they are a "sham," meaning that their arguments are objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits."Professional Real Estate Inv. v. Columbia Pictures Ind., 508 U.S. 49, 60-61 (1993). See, e.g., Bath Petroleum Storage, Inc. v. Market Hub Partners, L.P., 129 F. Supp. 2d 578 (W.D.N.Y. 1999), aff'd 229 F.3d 1135 (2d Cir. 2000).
 

C. Anti-SLAPP Statutes. Citizens generally fear reprisal by legal action, and in fact a strategic lawsuit against public participation ("SLAPP") is not uncommon. SLAPP suits are "civil lawsuits... that are aimed at preventing citizens from exercising their political rights or punishing those who have done so." Long Island Association for AIDS v. Greene, N.Y.L.J. 10/7/97 28:4 (N.Y. Sup. Ct. Suffolk Co. 1997), citing Canan & Pring, Strategic Lawsuits Against Public Participation, 35 Soc. Problems 506 (1988). Civil Rights Law §§70-a and 76-a and CPLR §§3211(g) and 3212(h) provide a defense and counterclaim (with remedies including punitive damages and attorneys' fees) for a SLAPP suit. In such an action involving "public petition and participation," the law provides the following defense:
 

damages may only be recovered if the plaintiff, in addition to all other necessary elements, shall have established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard of whether it was false, where the truth or falsity of such communication is material to the cause of action at issue.
 

Civil Rights Law § 76-a(2). Further, CPLR §3211(g) requires dismissal of a SLAPP unless the plaintiff demonstrates that its case has a "substantial basis in law or is supported by a substantial argument for an extension, modification or reversal of existing law."
 

D. Freedom of Information Law. Before filing suit, it may be prudent to file a freedom information request with DEC and other agencies regarding the project in order to gain as much information as possible before going to court. Public Officers Law Article 6.
 

E. Strategy. Intervenors should keep in mind that denial of a single permit may be sufficient to derail a project. Thus, an objector may only have to win a single battle to win the entire war. Nonetheless, a "shotgun" approach may result in a loss of credibility. Further, while ongoing proceedings may hamper an applicant's ability to finance its project, it is not appropriate to undertake proceedings merely for the purpose of delay. It is often advisable to cooperate with the press and send out press releases on developments, since the press will often be sympathetic to project opponents.
 

II. Nature of Article 78 Proceeding. Includes former "writs of certiorari to review, mandamus or prohibition." CPLR §7801. 
 

A. Special Proceeding. The proceeding is a special proceeding also governed by CPLR Article 4. CPLR §7804(a).

B. Respondent. Respondent must be a "body or officer." CPLR §7802(a).
 

C. Questions Presented. Under CPLR §7803, the questions presented are:
 

1. whether the body or officer failed to perform a duty enjoined upon it by law; or
 

2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or
 

3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or
 

4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.
 

III. Mechanics
 

A. Commencement.
 

1. Filing. "A special proceeding is commenced by filing a petition." CPLR §304 (amended by Laws of 2001, c. 473).
 

a. Index Number. An index number is mandatory. CPLR §306-a; Gershel v. Porr, 89 N.Y.2d 327, 653 N.Y.S.2d 82 (1996).
 

b. Process. Filing is accomplished by "delivery of the" required papers "together with any fee required" to the County Clerk or "any other person designated by the clerk of the court." CPLR §304. Krenzer v. Town of Caledonia Zoning Board of Appeals, 233 A.D.2d 882, 649 N.Y.S.2d 863 (4th Dep't 1996).
 

2. Notice of Petition/Order to Show Cause. Required under CPLR § 403.
 

a. Return Date. Return date no longer necessary!! CPLR §304, as amended by Laws of 2001, c. 473, omitted notice of petition or order to show cause as jurisdictional requirement for filing. Cf. Vetrone v. Mackin, 216 A.D.2d 839, 628 N.Y.S.2d 866 (3d Dep't 1995); Travis v. New York State Dept. of Environmental Conservation, 185 A.D.2d 714, 585 N.Y.S.2d 929 (4th Dep't 1992); Fry v. Village of Tarrytown, 89 N.Y.2d 714, 658 N.Y.S.2d 205 (1997). However, it wouldn't hurt to file notice of petition with fictitious return date, and serve as altered by the Court.
 

b. Service. Notice of Petition or Order to Show Cause must be "with" the petition when served. CPLR §306-b. See Lebow v. Village of Lansing Planning Board, 151 A.D.2d 865, 542 N.Y.S.2d 840 (3d Dep't 1989). This may still require return date!! 
 

c. Order to Show Cause. Must be signed and filed. Krenzer v. Town of Caledonia Zoning Board of Appeals, 233 A.D.2d 882, 649 N.Y.S.2d 863 (4th Dep't 1996).
 

3. Verification. Petition must be verified. CPLR §7804(d); but see CPLR §3022.
 

4. Defects. Defects may be waived. Fry v. Village of Tarrytown, 89 N.Y.2d 714, 658 N.Y.S.2d 205 (1997).
 

B. Service. 
 

1. Notice. Must serve at least 20 days before return date unless specified by order to show cause. CPLR §7804(c).
 

2. Time Limit. Must serve "not later than fifteen days after the date on which the applicable statute of limitations expires," also within 120 days of filing. CPLR §306-b. Upon "good cause shown or in the interest of justice" the court can extend time limit. CPLR §306-b.
 

3. Notice of Petition/Order to Show Cause. Must serve petition with notice of petition or order to show cause. CPLR §306-b.
 

4. Method of Service. See CPLR §307 (state); CPLR §311 (governmental subdivision); CPLR §312 (court, board or commission); if sue state officer or agency must always also serve Attorney General. CPLR §7804(c).
 

C. Venue/Court. 
 

1. County. As specified in CPLR §506 - generally in county where body or officer made determination, certain state agencies must be sued in Albany County. Failure to comply with this requirement may be fatal. Nolan v. Lungen, 61 N.Y.2d 788, 473 N.Y.S.2d 388 (1984). However, generally DEC can be sued either in Albany County or the county where the project is located. 
 

2. RJI. The petitioner needs to purchase an RJI and get papers to the Supreme Court Assignment Clerk. The practice varies by county. Service may have to be completed before purchasing an RJI unless an Order to Show Cause is requested. Court Rules §202.6(a). It may be prudent to have a duplicate red-rule original of the petition time-stamped by the County Clerk, and delivered to Supreme Court with a copy of the RJI.
 

3. Appellate Division. If question (4) under CPLR §7803 ("substantial evidence " review of true administrative hearing), if Special Term cannot dispose of case due to "objections that could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata," it should transfer to Appellate Division to determine "substantial evidence issue." CPLR §7804(g).
 

D. Verified Answer. Served at least five days before return date. CPLR §7804(e).
 

E. Objections in Point of Law. Objections may be raised by answer or motion to dismiss on five days notice. CPLR §7804(f). If the motion is denied, the answer should be served within five days of service of order with notice of entry, and the petition may be re-noticed by petitioner (two days notice) or respondent (seven days notice).
 

F. Record. CPLR §7804(e). "The body or officer shall file with the answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court." If there is no record ("return"), the Court should remit the matter back to the body or officer. Dupree v. Scully, 100 A.D.2d 966, 967, 475 N.Y.S.2d 79, 80 (2d Dep't 1984); Petty v. Sullivan, 131 A.D.2d 762, 517 N.Y.S.2d 60 (2d Dep't 1987). Court can order correction or supplementation of the record. CPLR §7804(e).
 

G. Reply. Required for "counterclaim demonimated as such," "new matter," or "where accuracy of proceedings annexed to the answer is disputed." CPLR §7804(d). 
 

H. Supporting Affidavits. Allowed with pleadings. CPLR §7804(c).
 

I. Memorandum of Law. Not a motion, so it is not clear if there is a time limit. Court Rules §§202.8(c); 202.9. It may be difficult to prepare without the record. However, a petitioner should give the respondent adequate time to respond and the court time to review the papers. The best course is to agree to a schedule.
 

J. Motions. Noticed to be heard at time of the petition. CPLR §406.
 

K. Trial. If "triable issue of fact... tried forthwith." CPLR §7804(h). May be right to trial by jury for some issues in a mandamus to review an administrative decision, the petitioner may have the right to a jury trial. Alexander, McKinney's Practice Commentary C7804:9 at 665-666; Green v. Commissioner of Environmental Conservation, 94 A.D.2d 872, 463 N.Y.S.2d 574 (3d Dep't 1983). 
 

L. Discovery. None without leave of court except Notice to Admit under CPLR §3123. CPLR §408.
 

M. Stay. CPLR §7805; but see CPLR §6313(a) (no TRO against "public officer, board or municipal corporation... to restrain the performance of statutory duties.")
 

IV. Procedural Issues/Defenses.
 

A. Exhaustion of Administrative Remedies/Ripeness. No review where decision "is not final or can be adequately reviewed by appeal to a court or to some other body or officer or where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the petitioner`s application." CPLR §7801(1). See, e.g., Rochester Telephone Mobile Communications v. Cole, 224 A.D.2d 918, 637 N.Y.S.2d 878 (4th Dep't 1996).

1. "It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law." Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52, 412 N.Y.S.2d 821 (1978). 
 

2. Exhaustion is not required if an administrative official lacked jurisdiction to make his or her determination. Lehigh Portland Cement Co. v. New York State Department of Environmental Conservation, 87 N.Y.2d 136, 638 N.Y.S.2d 136 (1995).
 

3. Exhaustion is not required if the administrative remedy is futile, Counties of Warren and Washington Industrial Development Agency v. Hudson Falls Board of Health, 168 A.D.2d 847, 565 N.Y.S.2d 236 (3d Dep't 1990), such as "where the administrative appeal is to the same body or officer whose official conduct is challenged." 6 N.Y. Jur.2d Article 78 and Related Proceedings §26. See, e.g., Kaindlon v. County of Rensselaer, 158 A.D.2d 178, 558 N.Y.S.2d 286 (3d Dep't 1990).
 

B. Statute of Limitations.
 

1. Most proceedings are governed by the four-month statute of limitations set forth at CPLR §217. Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 518 N.Y.S.2d 943 (1987).
 

2. Shorter time frames may apply to substantive approvals. E.g. Town Law §§267-c, 274-a, 274-b, 282 (30 days from filing with town clerk); Local Finance Law §82.00 (20 days from publication). The shorter time frame may apply to the accompanying SEQRA review. See, e.g., Purchase Environmental Protective Association, Inc. v. Town Board of Town/Village of Harrison, 207 A.D.2d 351, 615 N.Y.S.2d 444 (2d Dep't 1994).
 

3. Environmental Conservation Law §23-2721, contained in the Mined Land Reclamation Law, does not apply a shorter time limit, so the four-month time limit should apply to challenges of mining permits.
 

4. Equitable estoppel "'operates to bar a party from asserting the Statute of Limitations when that party's own wrongful concealment has engendered the delay in prosecution.'" Steyer v. Burns, 70 N.Y.2d 990, 991, 526 N.Y.S.2d 422, 423 (1988); see also Filut v. New York State Educ. Dept., 91 A.D.2d 722, 457 N.Y.S.2d 643 (3d Dep't 1982); cf. Rochester of Rochester Telephone Communications v. Ober, 224 A.D.2d 918, 637 N.Y.S.2d 878 (4th Dep't 1996).
 

C. Standing.
 

1. Zone of Interest. A "petitioner need only show that the administrative action will in fact have a harmful effect on the petitioner and that the interest asserted is arguably within the zone of interest to be protected by the statute." Dairylea Cooperative, Inc. v. Walkley, 38 N.Y.2d 6, 9, 377 N.Y.S.2d 451, 454 (1975); Matter of District Attorneys of Suffolk County, 58 N.Y.2d 436, 442, 461 N.Y.S.2d 773 (1983). However, if a petitioner's only interest in a case is purely economic and not environmental, there may not be standing to bring an environmental challenge. Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761, 773, 570 N.Y.S.2d 778, 785 (1991). There is no standing if the petitioner is not in the zone of interest. Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761, 773, 570 N.Y.S.2d 778, 785 (1991).
 

2. Liberal Rule. In Douglaston Civic Association, Inc. v. Galvin, 36 N.Y.2d 1, 6, 367 N.Y.S.2d 830, 834 (1974), the Court of Appeals rejected "the apparent readiness of our courts in zoning litigation to dispose of disputes over land use on questions of standing without reaching the merits," and substituted "a broader rule of standing." But recent cases, particularly from the Third Department, have been stricter. Oates v. Village of Watkins Glen, 290 A.D.2d 758, 736 N.Y.S.2d 478 (3d Dep't 2002); Save Our Main St. Bldgs. v. Greene County Legislature, 293 A.D.2d 907, 740 N.Y.S.2d 715 (3d Dep't 2002), lv. den'd 2002 N.Y. LEXIS 1953 (2002).
 
 
 

3. Organizational Standing. In Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761, 773, 570 N.Y.S.2d 778, 785 (1991), the Court of Appeals stated:
 

First, if an association or organization is the petitioner, the key determination to be made is whether one or more of its members would have standing to sue; standing cannot be achieved merely by multiplying the persons a group purports to represent. Second, an association must demonstrate that the interests it asserts are germane to its purposes so as to satisfy the court that it is an appropriate representative of those interests. Third, it must be evident that neither the asserted claim nor the appropriate relief requires the participation of the individual members.
 

An unincorporated association has the capacity to sue in the name of its president or treasurer. General Associations Law §12.
 

4. Burden of Proof. Burden on petitioner to show some "injury." See Sierra Club v. Morton, 405 U.S. 727, 2 S.Ct. 1361 (1972).
 

D. Necessary Parties. Must include necessary parties, e.g. landowner or permittee, although courts may allow inclusion after the statute has run. Baker v. Town of Roxbury, 220 A.D.2d 961, 632 N.Y.S.2d 854 (3d Dep't 1995), mot. den'd 87 N.Y.2d 807, 641 N.Y.S.2d 829 (1996); cf. Town of Preble v. Zagata, 250 A.D.2d 912, 672 N.Y.S.2d 510 (3d Dep't 1998).

.

E. Intervention. CPLR §7802(d) - court "may allow other interested persons to intervene." See Rochester Telephone Mobile Communications v. Cole, 224 A.D.2d 918, 637 N.Y.S.2d 878 (4th Dep't 1996).
 

F. Conversion to Plenary Action. CPLR §103(c) provides that "[i]f a court has obtained jurisdiction over the parties, a civil action shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution." 
 

1. Court should convert to proper form. Matter of Phalen v. Theatrical Protective Union, 22 N.Y.2d 34, 290 N.Y.S.2d 881 (1968).
 

2. Even Summons with Notice. Babcock Farms Neighborhood Association v. Town of Pittsford Planning Board, Index No. 12105/93 (Sup. Ct. Monroe Co. 1994, Siragusa, J.).
 

G. Appeal. Not interlocutory orders. CPLR §5702(b)(1).
 

V. Substantive Decision
 

A. Illegality. The court should conduct de novo review of legal issues. However, in cases of interpretation, "the courts regularly defer to the governmental agency charged with the responsibility for administration of the statute. If its interpretation is not irrational or unreasonable, it will be upheld." Matter of Ansonia Residents Assn. v. New York State Div. of Housing and Community Renewal, 75 N.Y.2d 206, 213, 551 N.Y.S.2d 871, 873 (1989).
 

B. Arbitrary and Capricious. "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." Pell v. Board of Education of Union Free School District No. 1, 34 N.Y.2d 222, 230, 356 N.Y.S.2d 833, 839 (1974). When reviewing rulemaking by an administrative official, the Court must consider whether it is "reasonable" and supported by "substantial evidence." Chemical Specialties Manufacturers Association v. Jorling, 85 N.Y.2d 382, 396, 626 N.Y.S.2d 1, 9 (1995). "A decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts if arbitrary and capricious." Knight v. Amelkin, 68 N.Y.2d 975, 977, 510 N.Y.S.2d 550 (1986).
 

C. Findings. Generally, an administrative body should make findings as a basis for its decision. See, e.g., Dean Tarry Corp. v. Friedlander, 78 A.D.2d 546, 432 N.Y.S.2d 35 (2d Dep't 1980); Open Space Council v. Planning Board of Town of Brookhaven, 152 A.D.2d 698, 543 N.Y.S.2d 754 (2d Dep't 1989)
 

D. SEQRA Compliance. The courts mandate "literal" or "strict compliance" with the SEQRA process, and "substantial compliance" has been held insufficient. King v. Saratoga Board of Supervisors, 89 N.Y.2d 341, 653 N.Y.S.2d 233 (1996); Taxpayers Opposed To Floodmart, Ltd. v. City of Hornell Industrial Development Agency, 212 A.D.2d 958, 624 N.Y.S.2d 689, 690 (4th Dept. 1995), stay vac'd 85 N.Y.2d 961, 628 N.Y.S.2d 48 (1995), app. dis'd 85 N.Y.2d 812, 631 N.Y.S.2d 289 (1995); Matter of West Branch Conservation Ass'n v. Planning Bd. of the Town of Ramapo, 177 A.D.2d 917, 576 N.Y.S.2d 675, 677 (3d Dep't 1991). However, judicial review of the content of the EIS and other "substantive obligations under SEQRA must be viewed in light of a rule of reason. 'Not every conceivable environmental impact, mitigating measure or alternative must be identified and addressed before an FEIS will satisfy the substantive requirements of SEQRA.'" Jackson v. New York State Urban Development Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 305 (1986). Further, there need not be "scientific unanimity" with regard to the conclusions reached. Schodack Concerned Citizens v. Town Board of Schodack, 148 A.D.2d 130, 134, 544 N.Y.S.2d 49, 51 (3d Dep't 1989), app. den'd 75 N.Y.2d 701, 551 N.Y.S.2d 905 (1989).
 

E. Mined Land Reclamation Law. The courts have generally deferred to administrative decisions of DEC as being supported by substantial evidence. See, e.g., Town of Preble v. Zagata, 250 A.D.2d 912, 672 N.Y.S.2d 510 (3d Dep't 1998); Regional Action Group for the Environment Inc. v. Zagata, 238 A.D.2d 888, 661 N.Y.S.2d 564 (3d Dep't 1997), mot. den'd 91 N.Y.2d 811, 671 N.Y.S.2d 714 (1998); Lane Construction Corp. v. Cahill, 270 A.D.2d 609, 704 N.Y.S.2d 687 (3d Dep't 2000), lv. den'd 95 N.Y.2d 765, 716 N.Y.S.2d 640 (2000).
 

F. Remedies. The court may annul, confirm, modify or remand. CPLR §7806. Or, it may remit for findings. See Dean Tarry Corp. v. Friedlander, 78 A.D.2d 546, 432 N.Y.S.2d 35 (2d Dep't 1980); Van Wormer v. Planning Board of the Town of Richland, 158 A.D.2d 995, 551 N.Y.S.2d 145 (4th Dep't 1990).
 

ALAN J. KNAUF is a partner in the law firm of Knauf Shaw LLP, located at 975 Crossroads Building, 2 State Street, Rochester, New York 14614. He concentrates his practice in the areas of environmental (including brownfield development, hazardous and solid waste, Superfund and oil spills, and air and water pollution issues), municipal and land use law, real estate, and civil litigation. He represents citizens, businesses, landowners, and governments. He is attorney for the Town of Huron. Knauf is Co-Chair of the Internet Committee of the Environmental Law Section of the New York State Bar Association, is a former Co-Chair of its Toxic Torts Committee, serves on the Executive Committee of that Section, and received the Section Council Award in 2000. He was founding Chairperson of the Environmental Law Committee, and is Chairperson of the Real Estate Section of the Monroe County Bar Association, was Chairman of the Center for Environmental Information, Inc. (CEI) from 1994-1996, and chairs CEI's Annual Survey Course in Environmental Law. Knauf has served as an Assistant Adjunct Professor of Environmental Law at the University of Rochester, is an Adjunct Professor of Emergency Preparedness Laws and Regulations at the Rochester Institute of Technology, and is Vice-President of American Recycling & Manufacturing Co., Inc. Knauf maintains the New York Virtual Environmental Law Center on the Internet at www.nyenvlaw.com. Knauf received a B.S.C.E. in Environmental Engineering from M.I.T. in 1977, and a J.D. from the University of Michigan in 1980. He is admitted to the bars of New York, Florida, and various federal courts.

SPONSORS MEMO:

NEW YORK STATE SENATE

INTRODUCER'S MEMORANDUM IN SUPPORT

submitted in accordance with Senate Rule VI. Sec 1
 

BILL NUMBER: S77

SPONSOR: SKELOS

TITLE OF BILL: An act to amend the civil practice law and rules, in relation to commencement of special proceedings
 

PURPOSE: The proposed amendment is intended to cure logistical problems encountered by attorneys under the present statute in commencing special proceedings.

SUMMARY OF PROVISIONS: Sections 1 and 2 amend Section 304 of the Civil Practice Law and Rules to eliminate the requirement that the notice of petition or order to show cause be filed with the petition in order to commence the proceeding.

Sections 3 and 4 amend subdivision (a) of section 306-a of the Civil Practice Law and Rules to allow the filing of a petition to commence a proceeding and that service of the petition or order to show cause must be done within 120 days. (Proceedings under the election law are excluded.)

EXISTING LAW: A notice of petition or an order to show cause must have an appropriate return date and must be filed with the petition to commence the action or proceeding.

JUSTIFICATION: Effective January 1, 1993, all special proceedings are to be commenced pursuant to CPLR 304 by the filing of a notice of petition or order to show cause together with the petition. The notice of petition or the order to show cause must include a return date for the determination of the petition. CPLR 403(a). The absence of an appropriate return date is a jurisdictional defect. Travis v. New York State Dept. of Environmental Conservation, 185 App. Div.2d 714(4th Dept.1992); Matter of Civil Service Employees Association v. Albrecht, 180 App. Div.2d 183 (3d Dept. 1992), leave denied, 80 N.Y. 2d 761 (1992). In addition, the papers served upon the respondent must be identical to the papers which are filed. William Court-White Hill Road Homeowners Association, Inc. v. New York State Commissioner of Mental Retardation and Developmental Disabilities, 161 Misc.2d 552, 613 N.Y.S.2d 322 (Sup. Ct. Westchester Co. 1994).

The procedure for the determination of the appropriate return date entails the assignment of the IAS judge. The return date of a special proceeding is to be selected in the same manner as the return date for a motion. Where there has been an assignment, the return date must be before the assigned judge, presumably on a day regularly scheduled for the judge's Motions. § 202.9 and 202.8 do provide procedure for motions in unassigned cases or special proceedings, but the procedure is cumbersome, and will require additional notice to the respondents once the case has become assigned. If the respondents have not yet appeared in the action, notice to them cannot be made under CPLR 2103.
 

As a result, the commencement of a proceeding presents a logistical problem. Since the notice of petition or the order to show cause must have an appropriate return date, the petitioner is faced with the choice of picking a return date, which may later be changed to accommodate the assigned judge's schedule, or filing an RJI in order to garner an assignment to a judge prior to the filing of the notice of petition and petition, so as to pick an appropriate return date for the judge assigned. If the petitioner is nearing the end of the limitations period, commencing the proceeding in an expedited manner will be essential, and in some counties, awaiting the assignment of a judge may take too long. If the petition is to be accompanied by an order to show cause instead of a notice of petition, the process becomes more difficult since the order to show cause must be signed, with appropriate return

date inserted, before the order to show cause and petition are filed. This will require, in most counties, the filing of an RJI prior to the filing of the order to show cause and petition. To further exacerbate the problem there is anecdotal evidence that in some counties, an index number cannot be purchased without the filing of something more than an RJI, e.g. the petition and notice of petition.
 

These problems, inherent in commencing a special proceeding, have resulted in a myriad of attempts by attorneys to avoid the logistical problems. There have been unsuccessful attempts to commence the proceeding by the filing of an unsigned order to show cause. William Court-White Hill Road Homeowners Association, Inc. v. New York State Commissioner of Mental Retardation and Developmental Disabilities, 161 Misc.2d 552, 613 N.Y.S. 2d 322 (Sup. Ct. Westchester Co. 1994). Even where there is a presentation of the order to show cause for signature at the time of filing the unsigned order to show cause with the petition, and a subsequent signing of the order to show cause and refining of it with the petition, commencement will not relate back to the earlier filing and presentment of order. Fry v. Village of Tarrytown, 89 N.Y.2d 714, 658 N.Y.S.2d 205 (1997). There have also been failures to properly commence an action where after filing a notice of petition and petition without a return date, the petitioner filed a new notice of petition and petition with a return date under the same index number without paying an additional fee. Vetrone v. Mackin, 216 App.Div.2d 839, 628 N.Y.S.2d 866 (3d Dept.), cf. Allens Creek v. County of Monroe, __Misc. 2d___ (Sup.Ct. Monroe Co.3/12/98, Index No. 98/767).

The difficulty stems from the requirement that the notice of petition or order to show cause be filed with the petition in order to commence the proceeding, and that the notice of petition or order to show cause have an appropriate return date. The necessity of the appropriate return date in the notice of petition or order to show cause is primarily for notice to the respondent and the cases which found a jurisdictional defect in its absence date back to before commencement by filing. See, e.g., Matter of Civil Service Employees Association v. Albrecht. 180 App.Div.2d 183 (3d Dept. 1992), leave denied, 80 N.Y.2d 761 (1992). The elimination of the requirement of filing the order to show cause or notice of petition with the petition in order to commence the proceeding, while still requiring the service of the order to show cause or notice of petition with the petition in order to give proper notice to the respondents will cure the logistical problems currently experienced in the commencement of a special proceeding, without changing the quality and quantity of notice given to the respondent. For these reasons, it is proposed to amend CPLR 304 to delete reference to the notice of petition or order to show cause, and to amend CPLR 306-B to add the requirement of service of the notice of petition or order to show cause together with the petition.
 

LEGISLATIVE HISTORY:

2000 - S.3069-C - Passed Senate

FISCAL IMPLICATIONS: None

EFFECTIVE DATE: Immediately