All civil judicial proceedings must be in the form of an action – unless otherwise authorized by statute, i.e. in the form of a special proceeding (see CPLR 103[b]). While most lawsuits are brought solely in the form of either a “special proceeding” or an “action,” land use litigants frequently combine the two into a “hybrid proceeding-action.” In the land use context, special proceedings are commonly brought pursuant to CPLR Article 78 to challenge the determinations of local bodies or officers, and litigants will often simultaneously bring an action to assert one or more plenary claims for, among other things, declaratory relief.
The CPLR requires specific papers and pleadings for the commencement and prosecution of each type of lawsuit, and, concomitantly, for a hybrid lawsuit. A litigant’s failure to strictly comply with the CPLR’s requirements may render certain claims jurisdictionally defective and/or untimely. A recent Decision, Order and Judgment of the Supreme Court, Albany County, in Clean Air Coalition of Western New York, Inc. v New York State Pub. Serv. Commn. (2024 NY Slip Op 24288 [Sup Ct, Albany County 2024]), discussed below, is illustrative.
A. Action versus Proceeding
The chosen lawsuit form depends upon the type of relief sought. On the one hand, an “action” offers breadth by permitting a plaintiff to assert a variety of plenary claims and to seek injunctive relief, but typically follows the lengthier course of discovery, depositions, motion practice, trial, etc. On the other hand, a “proceeding” is restricted to only those claims statutorily prescribed, but is heard and determined on an expedited basis akin to summary judgment. CPLR Article 78 proceedings are limited to five questions (including the ubiquitous mandamus to review under the arbitrary and capricious standard) (CPLR 7803[1]-[5]).
B. Commencing Proceedings and Actions
A special proceeding is commenced by the filing of a notice of petition and petition (CPLR 304[a]; CPLR 402 [“There shall be a petition, which shall comply with the requirements for a complaint in an action…”]; see CPLR 403[a] [“A notice of petition shall specify the time and place of the hearing on the petition and the supporting affidavits, if any, accompanying the petition.”]).[1] An “action” is commenced by the filing of a summons and complaint (CPLR 304[a]; see also CPLR 3011 – Kinds of Pleadings [“There shall be a complaint…”]).[2] For a hybrid proceeding-action, a combined petition-complaint should be utilized, rather than two separate pleadings.
Additionally, the CPLR requires service a notice of petition and petition in an Article 78 proceeding (CPLR 7804[c]), and service of a summons and complaint in an action (see generally CPLR Art. 3).
C. Two Pitfalls
When seeking to commence and prosecute a hybrid proceeding-action for Article 78 and declaratory relief, a litigant should be mindful to (1) strictly follow the CPLR to properly/timely commence the hybrid proceeding-action and serve the requisite pleading and papers, and (2) by so-doing, avoid a statute of limitations problem.
- Proper Commencement and Jurisdiction
A petitioner-plaintiff’s claims may be jurisdictionally defect for failure to file and serve a (i) summons and complaint and (ii) petition and notice of petition. In Clean Air Coalition of Western New York, Inc., the Court addressed a hybrid, or combined, Article 78 proceeding and action for declaratory relief. The Court held that the petitioner-plaintiff’s requests for declaratory relief were jurisdictionally defective because the petitioner-plaintiff failed to file and serve a summons in addition to the notice of petition:
A combined CPLR Article 78 proceeding/declaratory judgment action is commenced by filing and serving a notice of petition and summons under a single index number, along with a combined petition/verified complaint.[[3]] The summons invokes the jurisdiction for the declaratory-judgment-action component while the notice of petition performs the same function for the Article 78 aspect of the case. Here, petitioners failed to file and serve a summons in addition to the notice of petition.
This Decision, Order and Judgment is a cautionary tale.
- Timeliness
The statute of limitations may also be an issue if the hybrid proceeding-action is not properly commenced. A declaratory claim has a six-year statute of limitations, except where the declaratory claim could have been asserted as some other claim – in which case, the statute of limitations for that other claim will apply (see Mensch v Planning Bd. of Vil. of Warwick, 189 AD3d 1245, 1247 [2d Dept 2020] [“Where a declaratory judgment action seeks an adjudication of rights that could be resolved in a proceeding pursuant to CPLR article 78, the statute of limitations applicable to a CPLR article 78 proceeding applies.”]; CPLR 213[1]).
The statute of limitations issue is significant for any Article 78 hybrid because the statute of limitations to seek mandamus to review can be as short as thirty (30) days. Given the short time-frame and the time it may take to draft and prepare pleadings and papers, hybrid proceedings-actions are often filed at or near the expiration of the statute of limitations. Failure to properly commence a hybrid may be not only render certain claims jurisdictionally defective, but time-barred as well.
In sum, practitioners should strictly follow the applicable procedures to properly and timely commence hybrid proceedings-actions and to preserve and prosecute litigants’ claims.
[1] CPLR Section 304(a) explicitly states that only the filing of a petition is required to commence a special proceeding, but it is wise to file a notice of petition together therewith.
[2] CPLR Section 304(a) permits a plaintiff to commence an action by filing a summons with notice – in lieu of a complaint.
[3] CPLR 7804(d) requires a “verified petition.”