In re B. of Tr. v. Com. of Educ

9 Citing cases

  1. Ruffin v. Lion Corp.

    2010 N.Y. Slip Op. 8767 (N.Y. 2010)   Cited 90 times
    Holding that state courts may disregard technical defects in service pursuant to CPLR 2001 so long as no prejudice arises from the violation

    Our inquiry does not end here, however. CPLR 2001 may be used to cure only a "technical infirmity" ( Matter of Miller v Board of Assessors, 91 NY2d 82, 87; see also e.g. Matter of Tagliaferri v Weiler, 1 NY3d 605, 606; Matter of Great E. Mall v Condon, 36 NY2d 544, 548; Matter of Board of Trustees of Common School Dist. No. 2 of Town of Dickinson v Commissioner of Educ. of State of N.Y., 33 NY2d 601, 603). In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant — notice that must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections" ( Raschel v Rish, 69 NY2d 694, 696, quoting Mullane v Central Hanover Bank Trust Co., 339 US 306, 314).

  2. Long Island Teen Challenge, Inc. v. Town of Coeymans

    57 A.D.3d 1344 (N.Y. App. Div. 2008)   Cited 2 times

    Furthermore, we note that "[c]ourts are reluctant to construe delivery of process on persons other than those specifically authorized or qualified as effective service" ( Matter of De Russo v City of Albany Bd. of Zoning Appeals, 147 AD2d 836, 837; see Matter of J G Cent. Auto Collision v Zoning Bd. of Appeals of Inc. Vil. of Val. Stream, 210 AD2d 407, 408, lv denied 85 NY2d 807; Matter of Heinisch v Goehringer, 121 AD2d 721, 721-722; Matter of Franz v Board of Educ. of Elwood Union Free School Dist., 112 AD2d 934, 934-935, lv denied 67 NY2d 603). We have recognized, however, "instances where . . . it is more prudent to [acknowledge] reality and the needs of justice rather than adherence to technical statutory requirements" ( Matter of De Russo v City of Albany Bd. of Zoning Appeals, 147 AD2d at 837; see CPLR 2001; Board of Trustees of Common School Dist. No. 2 of Town of Dickinson v Commissioner of Educ. of State of N.Y., 40 AD2d 239, 242, affd 33 NY2d 601, 603).

  3. Long Is. Citizens v. Nassau

    165 A.D.2d 52 (N.Y. App. Div. 1991)   Cited 14 times

    Nevertheless, despite the applicability of CPLR 203 (b) (5) to this proceeding, the petitioner did not timely commence it, since the Sheriff was served only with a notice of petition within the applicable four-month Statute of Limitations. Contrary to the petitioner's contention, in order to commence a proceeding pursuant to CPLR article 78, service of a petition together with the notice of petition was required (see, CPLR 7804 [c]; Matter of Lebow v. Village of Lansing Planning Bd., 151 A.D.2d 865; Board of Trustees v. Commissioner of Educ. of State of N Y, 40 A.D.2d 239, 241, affd 33 N.Y.2d 601; Matter of Town of Montgomery v. Olley, 42 Misc.2d 906, 907; see also, Matter of Sipala v. Zoning Bd. of Appeals, 2 Misc.2d 1048). CPLR 304, which provides, in pertinent part, that "[a] special proceeding is commenced and jurisdiction acquired by service of a notice of petition" must be read together with CPLR 7804 (c), the specific provision dealing with the time for service of the notice of petition in a CPLR article 78 proceeding, which provides, in pertinent part, that "a notice of petition, together with the petition and affidavits specified in the notice, shall be served on any adverse party at least twenty days before the time at which the petition is noticed to be heard" (see, CPLR 7804 [c]; 403 [b] [dealing, in pertinent part, with the time for the service of notice of petition in a special proceeding, in general]).

  4. De Russo v. City of Albany Board of Zoning Appeals

    147 A.D.2d 836 (N.Y. App. Div. 1989)   Cited 4 times

    Courts are reluctant to construe delivery of process on persons other than those specifically authorized or qualified as effective service (see, e.g., Matter of Heinisch v Goehringer, 121 A.D.2d 721; Matter of Save the Pine Bush v Planning Bd., 101 Misc.2d 1062, 1064-1065, affd 83 A.D.2d 698, lv denied 54 N.Y.2d 610). But there are instances where the facts lend themselves to interpretive analysis productive of a reasonable conclusion that it is more prudent to recognize reality and the needs of justice rather than adherence to technical statutory requirements, particularly if such requirements are not serious or prejudicial (see, CPLR 2001; Matter of Board of Trustees v Commissioner of Educ. of State of N Y, 33 N.Y.2d 601; Matter of Gosine v Russo, 124 A.D.2d 803, lv dismissed 70 N.Y.2d 744).

  5. Brock v. Bua

    83 A.D.2d 61 (N.Y. App. Div. 1981)   Cited 214 times   1 Legal Analyses
    In Brock v. Bua, 443 N.Y.S.2d 407, 412 (App.Div. 1981), the court articulated a three-prong test for determining when an amended complaint adding a new party relates back to the filing of the original complaint.

    In considering whether the defense of the Statute of Limitations should bar a plaintiff's claim against a new party, the Federal courts adopted a three-pronged test later codified in subdivision (c) of rule 15 of the Federal Rules of Civil Procedure (see cases cited in Note: Federal Rule of Civil Procedure 15[c]: Relation Back of Amendments, 57 Minn L Rev 83, 91-93, ns 34-35, and accompanying text; 3 Moore, Federal Practice [2d ed], par 15.15 [4.-1], [4.-2]; cf. Board of Trustees of Common School Dist. No. 2 of Town of Dickinson v. Commissioner of Educ. of State of N.Y., 40 A.D.2d 239, affd 33 N.Y.2d 601; Matter of Ferry v. Boniface, 43 A.D.2d 758). A similar test should be applied in situations such as the one at bar.

  6. Potter v. Board of Education

    43 A.D.2d 248 (N.Y. App. Div. 1974)   Cited 10 times

    We will then be free in the future to consider each case on the particular facts and circumstances it presents and make a decision as to whether our discretion should be exercised in favor of an application of this nature. In Matter of Board of Trustees of Common School Dist. No. 2 of Town of Dickinson v. Commissioner of Educ. of State of N.Y. ( 33 N.Y.2d 601), a very recent case, while the facts are not like those in our case, nevertheless the court, at page 603, uses language which, in a general sense, supports the spirit of our decision in this case: "Modern jurisprudence generally and CPLR 2001 specifically direct a recognition of realities and the needs of justice and the ignoring of technical deficiencies". Therefore, the judgment, Supreme Court, Bronx County, entered on September 12, 1973 (DOLLINGER, J.), denying petitioner's application and dismissing the petition herein should be reversed, on the law, the facts and in the exercise of discretion, without costs, and the application granted.

  7. Matter of Ferry v. Boniface

    43 A.D.2d 758 (N.Y. App. Div. 1973)   Cited 4 times

    Under the circumstances, even though appellant was not named as a respondent in the original petition, it was sufficiently informative of the parties involved and of all the issues. We conclude that there was adequate service and notice, and any technical deficiency in failing to name appellant as a party to the proceeding can be ignored. ( Board of Trustees of Common Dist. No. 2 of Town of Dickinson v. Commissioner of Educ. of State of N.Y., 40 A.D.2d 239, affd. 33 N.Y.2d 601.) Order affirmed, without costs. Staley, Jr., J.P., Greenblott, Sweeney, Kane and Reynolds, JJ., concur.

  8. Barclay v. N.Y. State Comm. On Legislative

    65 Misc. 3d 685 (N.Y. Sup. Ct. 2019)   Cited 2 times

    Notably, CPLR 312 has been applied to State commissions and boards falling within the ambit of CPLR 307(2) (see e.g.Matter of Shedlin v. State Tax Commn. of State of N.Y. , 62 A.D.2d 806, 808-809, 406 N.Y.S.2d 596 [3d Dept. 1978] [commission]; Board of Trustees of Common School Dist. No. 2 of Town of Dickinson v. Commissioner of Educ. of State of N.Y. , 40 A.D.2d 239, 241-242, 339 N.Y.S.2d 200 [3d Dept. 1972] [board], affd 33 N.Y.2d 601, 347 N.Y.S.2d 569, 301 N.E.2d 541 [1973] ). Here, the summons was delivered to the chair of the Committee, respondent McCall, and to two of the other members: respondents Stringer and DiNapoli.

  9. STOCKWICZ v. COMMUNITY COLL

    90 Misc. 2d 55 (N.Y. Sup. Ct. 1977)   Cited 5 times

    In view of the affirmance by the Court of Appeals of the Appellate Division in Board of Trustees of Common School Dist. No. 2 of Town of Dickinson v Commissioner of Educ. ( 40 A.D.2d 239, affd 33 N.Y.2d 601), holding that the Commissioner of Education was the equivalent of a secretary or clerk of the Committee of Regents, it is clear that this language is to be broadly construed, and this court finds service on the president of the community college sufficient under CPLR 312.