CPLR Article 78

Matter of Tonawanda Seneca Nation v Noonan,___ NY3d___, 2016 NY Slip Op 04974 [2016]

The ultimate issue here will be a challenge to Surrogate Noonan’s jurisdiction to determine disputes over tribal lands arising from the probate of the will of  a tribal member. That will have to await another day, however, since the Seneca Nation commenced their Article 78 proceeding in the Appellate Division and not the Supreme Court. The Court of Appeals held here that an Article 78 against a Surrogate must be commenced in the Supreme Court, even where the Surrogate in question also wears a County Court robe. Accordingly, the Appellate Division lacked jurisdiction over the proceeding and properly dismissed it.

Supreme Court is, of course, the appropriate forum for most Article 78s. Even where the case involves issues that must ultimately be determined by the Appellate Division, the proceeding should normally begin in Supreme, which will effect the transfer itself after determining the issues within its jurisdiction. (CPLR 7804[g])

Among the limited class of cases which should begin directly in the Appellate Division are those against Supreme and County Court judges. (CPLR 506[b][1]) As to Supreme Court Justices, the reason for this is evident: a Supreme Court Justice should not be placed in the position of passing on the actions of another Justice. As to County Court judges, the reason is murkier, but as explained by the Court of Appeals the legislative history shows a reluctance to have a Supreme Court Justice, with primarily civil jurisdiction, review the actions of a County Court Judge, whose jurisdiction is primarily criminal.

In any event, notably absent from the list of proceedings directly commenced in the Appellate Division are those against Judges of the Surrogate’s Court. Surrogate Noonan also sits as a Judge of the County Court, but that doesn’t matter. Venue for the Article 78 against a multi-robe judge depends on the robe he or she was wearing when the challenged action was taken, and here that means Judge Noonan was wearing his Surrogate’s Court robe. Venue was in the Supreme Court, and the Appellate Division properly dismissed the proceeding.

Parenthetically, may I note that I find this justification incomprehensible. Most of my experience has been with the Supreme Court in Queens County, where Supreme Court Justices exercise both civil and criminal jurisdiction, and are in fact transferred from Civil to Criminal Terms and back, at the will of the court administrators. There is no County Court. A Supreme Court Justice is assumed to be capable of applying the totality of the law, whether or not there is also a County Court in the Justice’s home county. Why shouldn’t a Supreme Court Justice be fully capable of passing on the actions of a County Court Judge? They are not, after all, judges of the same Court. If the difficulty is to be found in the coordinate jurisdiction of the Supreme Court and the County Court, Supreme Court and the Surrogate’s Court likewise have coordinate jurisdiction. I have noted elsewhere my dismay at the pointlessly fractured nature of our supposedly Unified Court System and the unnecessary procedural issues it engenders, and here is another instance of it.

CRP/Extell Parcel I, L.P. v Cuomo, ___ NY3d___, 2016 NY Slip Op 04251 [2016]

The Court of Appeals issued a short decision here about a court’s lack of authority to entertain a post-judgment motion for statutory interest. Before universalizing it and jumping to the conclusion that the courts’ general authority to amend an erroneous or incomplete judgment has somehow been restricted, it is important to realize is that this was an Article 78 proceeding, and its specific and unusual procedural situation renders the decision of limited scope.

Petitioner was the sponsor of a condominium in Manhattan, and filed an offering plan with the respondent Attorney General requiring the purchasers’ down payments to be placed in escrow. If the first closing did not take place by September 1, 2008, the purchasers were entitled to their down payments back, with accumulated interest.

The first closing did not take place by September 1, 2008, and the purchasers demanded the return of their down payments, but the Petitioner refused, arguing that the 2008 date was a scrivener’s error. The correct date, it argued, was September 1, 2009. The purchasers applied to the Attorney General, who held in their favor and directed the return of the down payments with accumulated interest.

That order was the subject of this Article 78 proceeding. Supreme Court denied the petition, directed the return of the down payments with accumulated interest (that is, with the interest earned by the escrow fund, saying nothing about interest at the statutory rate under CPLR 5001), and dismissed the proceeding. The Appellate Division affirmed.

While that appeal was pending, the purchasers moved for the imposition of interest at the statutory rate, and it is that motion which concerns us now. Supreme Court granted the motion and entered a judgment for $4.9 million in interest. The Appellate Division reversed, holding that once the Attorney General’s order had been upheld and the proceeding dismissed, all issues had been resolved and Supreme Court was without jurisdiction to address the question of interest. Additionally, it held that CPLR 5001 did not apply, and the purchasers would not have been entitled to pre-judgment interest anyway, since the offering plan was not a contract.

The Court of Appeals affirmed, holding simply that the order dismissing the proceeding was a final judgment, and Supreme Court was thereafter without jurisdiction to entertain the Post-judgment motion for interest. It did not address the issue of whether interest would have been appropriate had the purchasers moved for it prior the the entry of the order.

The Court’s lack of elaboration of its holding might lead some to conclude that it applies to all situations. It should not be inferred from this decision that a court never has jurisdiction to amend a judgment after it has been entered. The key is that the Court cited to CPLR 7806 and not a more general section such as CPLR 5016. This decision should be regarded as applying to its specific fact pattern and context in an Article 78 proceeding where the issues directly presented by the petition had been resolved by the order.

Matter of Kickertz v New York Univ.,

___ NY3d ___, 2015 NY Slip Op 02800

In an Article 78 proceeding, if the respondent raises objections in point of law by pre-answer motion, and the motion is denied, “the court shall permit the respondent to answer”. (CPLR 7804 [f]) Despite the mandatory language there is an exception, recognized in Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 N.Y.2d 100 [1984], which allows the answer to be bypassed where the facts are so fully developed in the parties’ presentations as to be undisputed, and where there will be no prejudice from taking the shortcut. In BOCES, for example, the objection in point of law had been to standing, and while the papers developed the facts they did not clearly rule out triable issues. An answer was therefore required before the merits could be ruled on.

Here, both Supreme Court and the Appellate Division majority found the facts sufficiently developed to allow decisions on the merits without an answer. They then reached opposite conclusions on those merits. The Court of Appeals, however, found the facts sufficiently in doubt as to disallow the procedural shortcut, vacated the judgment and directed the service of an answer by the respondent. Read More