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Wednesday, March 19, 2014

The failure to serve a necessary party requires the dismissal of the proceeding


The failure to serve a necessary party requires the dismissal of the proceeding
2014 NY Slip Op 01696, Appellate Division, First Department

The Article 78 action involved an individual [Petitioner] seeking a court order annulling a decision of the New York City Civil Service Commission [CSC].

Petitioner was terminated from his employment by the New York City Department of Sanitation. CSC affirmed the Department’s decision and Petitioner appealed CSC’s ruling.

The Appellate Division sustained the Supreme Court granting CSC’s motion to dismissed Petitioner’s action, pointing out that Petitioner “concededly” failed to timely serve CSC, which was a necessary party* because CSC was the agency that made the decision challenged by Petition. The court explained that “[t]his failure to serve a necessary party required the dismissal of the proceeding,” citing Solid Waste Services, Inc. v City of New York, 29 AD3d 318 [leave to appeal denied, 7 NY3d 710].

The Appellate Division also sustained the Supreme Court declining to grant Petitioner an extension of time to perfect his appeal “notwithstanding the apparent absence of prejudice,” because of the Article 78 petition's “lack of merit.” Further, said the court, “Were we to reach the merits, under the extremely narrow scope of review applicable as [Petitioner] administratively appealed to CSC, we would find that [Petitioner} fails to demonstrate that CSC acted illegally, unconstitutionally, or in excess of its jurisdiction.”

* A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_01696.htm
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