Opinion
December 23, 1991
Appeal from the Supreme Court, Suffolk County (Tannenbaum, J.).
Ordered that the order dated March 7, 1990, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
Ordered that the order entered March 26, 1990, is affirmed, without costs or disbursements.
In the absence of a pending action, an application for leave to serve a late notice of claim must be brought as a special proceeding (see, Rogers v New York City Hous. Auth., 169 A.D.2d 763; Matter of Eso v County of Westchester, 141 A.D.2d 542; see also, Farber v County of Hamilton, 158 A.D.2d 902). However, contrary to the appellant's contention, dismissal of the proceeding was not required on that ground. Where, as here, the court has obtained jurisdiction over the parties, it shall not dismiss an action for lack of proper form but must "make whatever order is required for its proper prosecution" (CPLR 103 [c]; see, Matter of Kovarsky v Housing Dev. Admin., 31 N.Y.2d 184). We find that the court properly treated the petitioners' application as a special proceeding.
Furthermore, under the circumstances of this case, the court did not improvidently exercise its discretion in granting the application as to John Sullivan (see, Matter of Kareca Lashawn J. v County of Westchester, 142 A.D.2d 729; Braverman v City of White Plains, 115 A.D.2d 689). Nor did the court err in denying the appellant's motion to dismiss for failure to state a cause of action. Inasmuch as no underlying action had yet been commenced, there was no cause of action to be dismissed (see, CPLR 3211).
We have examined the appellant's remaining contentions and find them to be without merit. Mangano, P.J., Kunzeman, Eiber and Balletta, JJ., concur.