Opinion
June 9, 1994
"It is now completely settled law that the failure to include a return date in a notice of petition as required by CPLR 403 (a) is a jurisdictional defect requiring dismissal of a special proceeding" (Matter of Kalinsky v. State Univ. of N.Y. at Binghamton, 188 A.D.2d 810, 811, lv denied 81 N.Y.2d 711; see, Matter of Figaro v. New York State Local Retirement Sys., 703 A.D.2d 678; Matter of Harder v. Board of Educ., 188 A.D.2d 783, 784). This requirement applies with equal force where, as here, the proceeding is commenced by an order to show cause in lieu of a notice of petition (see, CPLR 403 [a], [d]; cf., Matter of Connor v. Osorio, 185 A.D.2d 964, 965 [Harwood, J.P., and Eiber, J., dissenting], revd on dissenting mem below sub nom. Matter of Osorio v. Leventhal, 80 N.Y.2d 898). Inasmuch as the instant order to show cause fails to specify a return date, this proceeding must be dismissed. Petitioners' remaining arguments on this point have been examined and found to be lacking in merit. In light of this conclusion, we need not address the remaining issues raised on review.
Mercure, J.P., Yesawich Jr. and Peters, JJ., concur. Adjudged that the petition is dismissed, without costs.