In any event, the timing requirement of CPLR 7804(c) is not jurisdictional in nature and is subject to extension in the absence of prejudice (see Matter of Brown v. Casier , 95 A.D.2d 574, 577, 469 N.Y.S.2d 165 [3d Dept. 1983] ; see alsoMatter of Bluestone Gas Corp. of N.Y., Inc. [Iaboni] , 116 A.D.3d 1182, 1183-1184, 984 N.Y.S.2d 201 [3d Dept. 2014] ). DiNapoli raises no claim of prejudice, and he timely filed a pre-answer motion to dismiss the Petition.
Respondent first argues that Supreme Court lacked jurisdiction because the initial return date for the EDPL article 4 petition set in the order to show cause was less than 20 days after she was served. While failure to comply with the various notice provisions can result in dismissal of the petition ( see Matter of Town of Carmel v. Blanks, 269 A.D.2d 455, 456, 703 N.Y.S.2d 209 [2000],lv. denied95 N.Y.2d 755, 712 N.Y.S.2d 447, 734 N.E.2d 759 [2000] ), “[i]t is ... also true that the CPLR generally applies to EDPL proceedings” (Matter of Goldstein v. New York State Urban Dev. Corp., 13 N.Y.3d 511, 520, 893 N.Y.S.2d 472, 921 N.E.2d 164 [2009];seeEDPL 703) and time limits of the nature implicated here are not necessarily always enforced with unwavering rigidity ( see Matter of Brown v. Casier, 95 A.D.2d 574, 577–578, 469 N.Y.S.2d 165 [1983];see alsoEDPL 402[B][2][b] [reflecting some flexibility regarding notice provisions] ). Here, respondent ultimately had 26 days between the time she was personally served with the petition and the adjourned return date.
Generally, the failure to comply with a provision for service of papers can be disregarded in the absence of substantial prejudice to the right of a party ( see e.g. Matter of Brown v Casier, 95 AD2d 574, 577 [failure to serve petition 20 days before return date]). Significantly, Leydier identifies no prejudice incurred by him as a result of the disputed irregularity in service and concedes that he timely received plaintiffs' notice of appeal, which was duly filed within the time prescribed by statute (CPLR 5515).
Initially, petitioner contends that Supreme Court improperly dismissed his application on the ground that he served the notice of petition and petition upon respondent less than 20 days prior to the return date, where the Attorney-General was timely served (see, CPLR 7804 [c]). The Attorney-General concedes that Supreme Court made no finding that respondent was prejudiced by the late service, but argues that the dismissal should be affirmed on the merits. While we find that respondent did not demonstrate substantial prejudice so as to warrant dismissing the petition on this basis (see, Matter of Brown v. Casier, 95 A.D.2d 574, 576-577), we nevertheless agree with Supreme Court's extensive alternate analysis that the petition should be dismissed on the merits.
As a preliminary matter, we reject respondent's contention that the petition should be dismissed because it was not served on respondent "at least twenty days before the time at which the petition is noticed to be heard", as required by CPLR 7804 (c). In the absence of prejudice to respondent, which was served with the petition 18 days before the return date and had ample time to prepare an answer, we disregard the defect as a mere irregularity and reach the merits of this dispute ( see, CPLR 2001; Matter of Marmo v. Department of Envtl. Conservation, 134 A.D.2d 260, 261; Matter of Brown v. Casier, 95 A.D.2d 574, 576-577). Petitioner contends that the Board's determination was made in violation of lawful procedure.
The record indicates that petitioners received a letter informing them of the return date within a week after they had received respondent's motion papers. We find, since no substantial right of a party was prejudiced, that Surrogate's Court properly disregarded the procedural irregularity ( see, CPLR 2001; see also, Henry v Gutenplan, 197 AD2d 608; Matter of Brown v Casier, 95 AD2d 574, 577; Todd v Gull Contr. Co., 22 AD2d 904; Coonradt v Walco, 55 Misc 2d 557, 558). Turning to the merits, we conclude that Supreme Court properly granted respondent's motion for summary judgment and dismissed the petition.
With regard to motion practice and CPLR article 78 proceedings, the CPLR requires the service of papers a certain number of days prior to the return date (CPLR 2214 [b]; 7804 [c]). In Matter of Brown v. Casier ( 95 A.D.2d 574, 577), we recognized that lack of compliance with these time requirements is a mere irregularity to be ignored in the absence of substantial prejudice to a party. In so doing, we noted that the Legislature could not have intended the notice requirement to be inflexible because it provided for shorter notice by order to show cause (see, CPLR 7804 [c]; see also, CPLR 2214 [d]).
edy, including the provision that precludes a challenge to a determination "which is not final or can be adequately reviewed by appeal to a court or to some other body or officer" (CPLR 7801). As the majority concedes, the relief sought by Dombroski in this article 78 proceeding could have been obtained by way of the grievance procedure, and the courts of this State have consistently and uniformly held that, pursuant to the doctrine of exhaustion of administrative remedies, a petitioner who fails to pursue the grievance procedures provided for in the collective bargaining agreement is barred from maintaining an article 78 proceeding seeking relief which could have been obtained in the grievance process (Matter of Plummer v Klepak, 48 N.Y.2d 486, 489, cert denied 445 U.S. 952; Matter of Oneida County Deputy Sheriff's Benevolent Assn. v Hasenauer, 145 A.D.2d 984, 985; Matter of Cantres v Board of Educ., 145 A.D.2d 359, 360; Carlen v Harris, 140 A.D.2d 288, 290, lv denied 73 N.Y.2d 709; Matter of Brown v Casier, 95 A.D.2d 574, 576). We have applied this rule in cases where the petitioners failed to initiate the available grievance process (see, Matter of Brown v Casier, supra; Matter of Taylor v Libous, 87 A.D.2d 947), and in those cases where the petitioners abandoned the grievance procedure prior to its completion (see, Matter of Mottironi v Axelrod, 133 A.D.2d 948, lv denied 70 N.Y.2d 615; Matter of Ward v Chesworth, 125 A.D.2d 912, 914, lv denied 69 N.Y.2d 610), including the failure to proceed timely to the final step of arbitration (see, Matter of Trainosky v New York State Dept. of Taxation Fin., 105 A.D.2d 525, 526).
The respondent also challenges the fact that the "Notice of Motion" was served with only 17 days' notice, rather than the 20 days required by CPLR 7804 (c). While some cases have held that notice of less than 20 days was a jurisdictional defect (see, Matter of Dickerson v. Jensen, 33 A.D.2d 890), the more recent view, of which we approve, is that short notice should be excused unless the error is substantial or it causes prejudice (see, Matter of Brown v. Casier, 95 A.D.2d 574, 577; compare, Matter of Stream v. Beisheim, 34 A.D.2d 329, 330-331 [notice given on the same day as the return date]; Matter of Crawford v. Codd, 54 A.D.2d 878). Hence, the above defects should be considered nonprejudicial irregularities.
Thus, defendants were entitled to at least 10 days' notice and plaintiff's notice of motion was deficient in this regard. This court, in related situations, has determined that various untimely notices are not jurisdictional defects which would require dismissal of the action unless waived (see Matter of Brown v. Casier, 95 A.D.2d 574, 576-577; see, also, Coonradt v Walco, 55 Misc.2d 557, 558). Rather, we have seen fit to consider the untimely notice as an irregularity which should be disregarded unless there is substantial prejudice to a party (see Matter of Brown v. Casier, supra; see, also, Coonradt v. Walco, supra).