Marmo v. Department of Environmental Conservation

• Decision Date: 02 November 1987
• Citation: 520 N.Y.S.2d 442,134 A.D.2d 260
• Parties: In the Matter of John MARMO, Appellant, v. DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 442

520 N.Y.S.2d 442

134 A.D.2d 260

In the Matter of John MARMO, Appellant, v. DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent.

Supreme Court, Appellate Division,

Second Department.

Nov. 2, 1987.

Kenealy & Hametz, Massapequa (Ivan W. Hametz and Gennaro Pasquale, of counsel), for appellant.

Robert Abrams, Atty. Gen., New York City (Leslie Allan and Ezra I. Bialik, of counsel), for respondent.

Before NIEHOFF, J.P., and WEINSTEIN, KUNZEMAN and SPATT, JJ., concur.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78, to review a determination of the respondent, dated January 10, 1985, which, inter alia, found the petitioner in violation of ECL 15-0505 and 25-0401 with respect to the destruction of certain intertidal marsh, and assessed a civil penalty of $5,000, the petitioner appeals from an order of the Supreme Court, Nassau County (Molloy, J.), entered February 26, 1986, which denied the petitioner's motion for leave to serve a notice of petition and petition.

ORDERED that the order is reversed, on the law, without costs or disbursements, the petitioner's motion is granted, the notice of petition and petition are deemed served, and the matter is remitted to the Supreme Court, Nassau County, to afford the respondent the opportunity to serve and file answer (see, CPLR 7804[f] ). The respondent shall serve and file its answer within 20 days after service upon it of a copy of this decision and order, with notice of entry.

The petitioner timely commenced this CPLR article 78 proceeding by service of papers upon the Department of Environmental Conservation (see, ECL 25-0404; General Construction Law § 25-a). The papers served were denominated, respectively, as a notice of motion, an affidavit and an affirmation, rather than as a notice of petition and petition. Subsequently, and after the expiration of the applicable Statute of Limitations (see, ECL 25-0404), papers in the corrected form of a notice of petition and petition were served upon the Attorney-General. While copies of these corrected papers were not delivered to the respondent, the validity of the method of service upon the Attorney-General is not challenged.

While the initial papers served upon the respondent were not properly denominated, they fulfilled the purposes of a notice of petition and petition, since they gave notice as to what administrative action was being challenged, the events upon which the action was taken, the basis of the challenge, and the relief sought (see, CPLR 402, 3013, 3017, 7803, and 7804). Furthermore, while service of papers must also be made upon the Attorney-General when the proceeding is against a State body or officer (see, CPLR 7804[c] ), the claim is deemed interposed when the papers are served on the State agency. The Statute of Limitations is then tolled for purposes of service upon the Attorney-General (see, Matter of Chem-Trol Pollution Servs. v. Ingraham, 42 A.D.2d 192, 345 N.Y.S.2d 714, lv....