In the Matter of Christopher P. Gershel, Appellant, v. Harry Porr III, City
Manager, City of Newburgh, Respondent.
89 N.Y.2d 327, 675 N.E.2d 836, 653 N.Y.S.2d 82 ( 1996)
December 19, 1996
2 No. 261 (1996 NY Int. 247)
Decided December 19, 1996
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
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Michael H. Sussman, for appellant.
Kelly A. O'Neill, for respondent.
CIPARICK, J.:
The issue on appeal is whether petitioner satisfied the
requirements of New York's commencement-by-filing system in this
special proceeding. Because petitioner withdrew the originally filed
order to show cause and thereafter served a notice of petition on
respondent without filing a new set of initiatory papers and paying an
additional filing fee, we hold that petitioner never properly
commenced the special proceeding and the attempted service was a
nullity.
On May 9, 1994, petitioner, Police Chief of Newburgh, was
charged with misconduct by respondent, City Manager of Newburgh, based
on allegations that petitioner used the City's telephone and cellular
phone for private calls without authorization and without thereafter
paying for the calls. Petitioner was suspended from his job without
pay pending an administrative hearing, and, as a result of scheduling
problems, a hearing on the charges was adjourned several times. Under
Civil Service Law 75, the period of petitioner's suspension without
pay could not exceed 30 days, or until June 8, 1994. The City
thereafter restored petitioner to the payroll effective June 30,
1994--not June 8th--withholding petitioner's wages for the three-week
period of June 8th to June 30th as a set-off for money allegedly owed
to it by petitioner for prior unauthorized absences.
Petitioner subsequently instituted a CPLR article 78
proceeding on July 12, 1994, by filing an order to show cause and
verified petition with the Clerk of Orange County Supreme Court,
seeking compensation for the disputed three-week period. On July 21,
1994, respondent moved to dismiss the order to show cause and petition
SNIPPETS:
In the Matter of Christopher P. Gershel, Appellant, v. Harry Porr III, City Manager, City of
Kelly A. O'Neill, for respondent.
Because petitioner withdrew the originally filed order to show cause and thereafter served a
On May 9, 1994, petitioner, Police Chief of Newburgh, was charged with misconduct by
Petitioner subsequently instituted a CPLR article 78 proceeding on July 12, 1994, by filing
On July 21, 1994, respondent moved to dismiss the order to show cause and petition for lack
That same day, petitioner recast the order to show cause as a notice of petition and served
Since petitioner's time to serve process has not expired, the procedure followed is proper,
The Appellate Division held that: the petitioner withdrew his initial order to show cause,
In 1992, the Legislature converted New York civil practice in the Supreme and County courts
The filing system does confer a significant benefit on petitioners and plaintiffs by making
Thus, in a special proceeding with a statute of limitations of four months or less, such as a
In recognition of this procedural trap, the Legislature built a safety valve into the filing
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