There are three main elements the prosecution must prove in  a New York Driving While  Intoxicated case; (1) Intoxication; (2) Operation; and (3) Location.  In other words, the prosecution must prove that the defendant was intoxicated while operating a motor vehicle  in  or upon a location  where the  NY DWI statutes apply.   White Plains defense attorney John Campbell  has attacked the element of operation in numerous cases to his clients’ benefit.  These cases often involve a person found sleeping  in the driver’s seat or found outside of the car when the police arrive.

These cases are very fact specific.  When the person is found sleeping in the driver’s seat, the main question is where was the car? Does the location of the car indicate the driver was passed-out.  For example, generally, a driver found “sleeping” behind the wheel of a running motor vehicle  in the left turn lane would be described by the police officer as “passed out”.  On the other hand, does the vehicle’s location indicate the driver had no intention of driving.  A person found sleeping in the driver’s seat of a vehicle found in a train station parking lot, properly parked, with the engine running for heat or air conditioning depending on the weather might have returned from a night of drinking in the City and, knowing he or she had several drinks made the correct decision and was “sleeping it off” or waiting for a ride.

A 2010 Driving While Intoxicated trail Mr. Campbell won in the Greenburgh Town Court provides an excellent example of a case where the prosecution could not prove operation.  The police alleged they found Campbell’s client asleep, behind the wheel, in his running vehicle.  However, while cross-examining the officers, Mr. Campbell established the defendant lived in a co-op building and that his car was parked perfectly in his assigned parking spot.  Furthermore, the officers  admitted the defendant had reclined the seat indicating he did not intend to move the vehicle.

Furthermore, Campbell established that both officers were outright lying, committing perjury, on a “key” a issue.  Both Officers testified on direct examination that they approached the defendant’s vehicle on the driver’s side.  Both officers also testified on direct that the “keys were in the ignition.”  On cross-examination Campbell questioned both officers about their approach and confirmed that both officers approached defendant’s vehicle on the driver’s side.  Campbell also questioned both officers about the alleged keys in the ignition asking both officers if they were sure that the keys were in the ignition.  Both officers maintained that the “keys were in the ignition.”  Therefore, both officers testified under oath that they approached defendant’s vehicle on the driver’s side and they both testified under oath that the keys were in the ignition.

Knowing that his client’s vehicle didn’t use a “key in the ignition” but instead was equipped with a key less, push button start system, Campbell knew both officers were lying.  Campbell gave the officers numerous opportunities on cross-examination to either (1) correct their perjury; or (2) continue to bury themselves by lying.  Both officers chose the latter; they both continued to testify that the keys were in the ignition.

Mr. Campbell had his client’s girlfriend testify.  She testified that she had been driving for over forty years and had driven the defendant’s car on a regular basis.  She testified that the defendant’s vehicle did not utilize any keys to start it and that there are no “keys in the ignition” to be seen as the officers testified.  She further testified that the defendant’s vehicle was a push button start and that there were no keys hanging from any ignition as there are in cars with more common starting systems. The defendant’s vehicle was a BMW and, like many high end cars produced today, it utilized a key less, push button start.  It was therefore, impossible to see keys in the ignition because there were no keys in the ignition.  The officers therefore, lied when they testified that they observed the keys in the ignition.  And, when given several opportunities to correct their testimony, they nevertheless continued to perjure themselves and testify that the “keys were in the ignition.”

Mr. Campbell argued two theories.  First he argued that none of the officer’s testimony should be credited because they were both caught lying.  Second, argued Campbell, the prosecution did not prove his client operated the vehicle which is an element of DWI under VTL 1192(2) or 1192(3).  Mr. Campbell’s client was found not guilty in a case that was a complete and utter waste of resources.

For more information feel free to contact attorney John Campbell at 914-837-1800 or email Mr. Campbell using the contact form on this page.

THE LAW OFFICE OF JOHN CAMPBELL

188 E. Post Road – Suite 300

White Plains, NY 10601

914-837-1800

John Campbell, Attorney

If you have been arrested for Driving While Intoxicated in New York, one of the first areas your defense attorney will look at is your initial contact with the police.  If the stop was illegal, all evidence derived from that stop may be suppressed. Where a defendant alleges the police lacked probable cause to stop his or her vehicle, the Court will typically order a pre-trial probable cause hearing pursuant to Dunaway v. New York, 442 U.S. 200 (1979) to determine whether the police had an articulable reason to approach and/or stop the defendant and whether they had probable cause to arrest him or her.  This is commonly referred to as a “Dunaway Hearing”.  If the stop was impermissible then the subsequent arrest was illegal and any evidence obtained after the arrest would be inadmissible.  People v Chilton, 69 N.Y.2d 928 (1987); People v Ingle, 36 N.Y.2d 413 (1975). The Court will combine the Dunaway Hearing with a “Mapp Hearing” to determine whether any evidence was illegally obtained and therefore must be suppressed. Mapp v. Ohio, 367 U.S. 643 (1961). The Dunaway Hearing is to determine whether there was probable cause for the police to stop the defendant in the first place. The Mapp Hearing is to determine whether any evidence was illegally obtained by the police.

Breathalyzer test results are physical evidence suppressible under Mapp v. Ohio. See e.g., People v. Johnson, 134 Misc.2d 474 (1987)(holding a breathalyzer test result is physical evidence as contemplated by Mapp v Ohio and CPL 710.60).
Further, obtaining a breath sample from a DWI suspect for alcohol analysis constitutes a “search” within the meaning of the Fourth Amendment. Skinner v. Railway Labor Executives Association, 489 U.S. 602, 616-17 (1989).

Furthermore, while Mapp v. Ohio concerned the suppression of physical, tangible evidence, the New York Court of Appeals has expanded the holding of Mapp to include observations made by police that resulted from illegal police conduct. For example, in People v. Rossi, 80 N.Y.2d 952, 954 (1992) the Court of Appeals dismissed an indictment where the only evidence linking defendant to the crime was the testimony of a police officer concerning the defendant’s conduct observed after defendant was illegally arrested. See also People v. Dory 59 N.Y.2d 121, 126 (1983)(if police officer’s entry into house was illegal, testimony from the officer concerning physical evidence observed or seized or incriminating actions observed would be inadmissible); People v. O’Neill, 11 N.Y.2d 148, 154 (1962)(“officers may not testify to what they observed during the illegal search”).

Therefore, if the stop of defendant’s vehicle was illegal, all evidence derived from that illegal stop is subject to suppression including any breath test results and officer observations of the defendant such as swaying, staggering, glassy eyes, bloodshot eyes and odor of an alcoholic beverage.

For more information feel free to contact attorney John Campbell at 914-837-1800 or email Mr. Campbell using the contact form on this page.

THE LAW OFFICE OF JOHN CAMPBELL
188 E. Post Road – Suite 300
White Plains, NY 10601
914-837-1800
John Campbell, Attorney

 

Apparently police officers know who to call when they find themselves “jammed up.” A former Geneva City Police Officer sought out Westchester County DWI attorney John Campbell, formerly a partner with Tilem & Campbell, to appeal his DWI conviction. The officer was originally tried and convicted in the Benton Town Court in Yates County.  In reviewing the record of the trial, Campbell learned that the trial judge’s mother-in-law was allowed to sit on the jury.  For whatever reason, the officer’s trial attorney failed to object to the mother in law on the jury thus failing to preserve the issue for appeal.  Nevertheless, Campbell focused the appeal on this issue arguing that allowing the judge’s mother-in-law to sit on the jury was such plain error and infringed upon the officer’s constitutionally protected fundamental right to a fair and impartial jury, that an objection was necessary.  The error was so egregious, the trial court had an obligation to protect the officer’s right to a fair and impartial jury and excuse his mother in law.

Acting Yates County Court Judge Dennis Bender agreed with Campbell’s argument and reversed the officer’s July, 2011 Driving While Intoxicated Conviction.  Just as Campbell had argued, the County Court placed the ultimate responsibility on the trial judge noting the judge “should not have permitted his mother-in-law to serve on the jury and she should have been disqualified on the Court’s own initiative.”

This appeal victory came just one week after Campbell won a three day suppression hearing in a Greenburgh DWI resulting in the suppression of all evidence and the ultimate dismissal of the case.  In that case, Mr. Campbell argued that the police officer lacked probable cause to stop his client  for speeding.  Accordingly, argued Campbell, all evidence derived from that illegal stop had to be suppressed.  Town Justice Arlene Gordon-Oliver agreed  holding “Trooper Lopez did not possess sufficient facts to determine that criminal activity was afoot by Defendant or that Defendant was speeding.”  [CLICK HERE FOR J. OLIVER'S DECISION].

These two victories further solidify Mr. Campbell’s reputation as one of the most knowledgeable, skilled and successful DWI defense attorneys in New York State.  While Mr. Campbell cannot guarantee a successful outcome in any particular case, any one charged with a DWI in New York might consider contacting John Campbell for free telephone consultation with Mr. Campbell. Before pleading guilty or going to trial with any lawyer, consider a second opinion from Mr. Campbell.

For more information feel free to contact attorney John Campbell at 914-837-1800 or email Mr. Campbell using the contact form on this page.

THE LAW OFFICE OF JOHN CAMPBELL
188 E. Post Road – Suite 300
White Plains, NY 10601
914-837-1800

.

 

Are you the subject of a Child Protective Services investigation for leaving your child home alone or alone in a parked car? Perhaps you have been charged with Endangering The Welfare Of a Child [Penal Law PL 260.10] for such conduct. Did you know that there is no law in New York setting the age a child must be to be left alone.  In fact, the New York State Office of Children and Family Services actually state on their website, “There are no straightforward answers to these questions. All children develop at their own rate, and with their own special needs and abilities. Some children are responsible, intelligent, and independent enough to be left alone at 12 or 13 years of age.”

Courts in New York have been reluctant to impose liability when a young child is left alone for a short period of time, disparaging the conduct as “bad parenting,” but stopping short of finding it criminal or neglectful.  In People v. Seward, 173 Misc. 2d 1020, 1021 (N.Y. City Ct. 1997), the Mt. Vernon City Court found that leaving a six-year-old child at home alone for one hour during the night did not rise to the level of criminal activity on the part of the defendant.  Similarly, in Augustine v. Berger, 88 Misc.2d 487 (N.Y. Sup. Ct. 1976), the New York State Supreme Court – Suffolk County, found that an isolated incident where a parent left her children home alone for approximately thirty-minutes did not fall within the definition of a neglected child.  As such, the Court granted the mother’s Article 78 petition and annulled the fair hearing decision which had upheld the indicated finding. [See also People v. Smith, 178 Misc. 2d 350 (1998)(allegations that the defendant left her four children, ages 5, 7, 12 and 13, home alone for two hours insufficient); Matter of Doe, 648 P.2d 1180 (1981)(Citing Augustine v. Berger, the New Mexico Court of Appeals reversed a neglect finding where the mother left child home alone for approximately one hour while she went shopping)].

However, in People v Watson, 182 Misc 2d 644 (1999), the child’s father was charged with endangering the welfare of a child after he left his seven-year old child home alone for over 2 1/2 hours.  In rejecting the father’s motion to dismiss in the interest of justice under CPL 170.40 (1), the court stated it was “reasonably foreseeable that extreme harm could come to a young child who is left alone at home…” Id at 651. [See also People v. Cenat, 176 Misc.2d 39 (1997)(New York City Criminal Court (Kings Cnty), held that a parent leaving her two children, ages 10 and 3 years, unsupervised in a car on a Brooklyn street for a period in excess of two hours sufficiently alleged endangering the welfare of a child).

For more information, feel free to contact attorney John Campbell at 914-837-1800.

THE LAW OFFICE OF JOHN CAMPBELL
188 E. Post Road – Suite 300
White Plains, NY 10601

Standard Of Review Of Determinations Made By The New York State Department Of Correctional Services Inmate Grievance Program

Judicial review of a determination by the The New York State Department Of Correctional Services Inmate Grievance Program is limited to whether such determination was “irrational, arbitrary and capricious or affected by an error of law.”  Matter of Hernandez v Fischer, 79 A.D.3d 1544, 1546 (3rd Dept. 2010) see also Matter of Bermudez v Fischer, 71 A.D.3d 1361, 1362 (3rd Dept. 2010)(in denying inmate’s grievance pertaining to the computation of his sentence, the Court noted that its review was limited to whether the determinations were irrational, arbitrary and capricious or affected by an error of law).

Burden On Inmate Who Challenges Determinations Made By The New York State Department Of Correctional Services Inmate Grievance Program

To prevail, an inmate/petitioner carries the heavy burden of demonstrating that the determination by Central Office Review Committee (CORC) was irrational or arbitrary and capricious. Matter of Frejomil v Fischer, 68 A.D.3d 1371, 1372 (3rd Dept. 2009).  Phrased differently, “[t]o prevail, [inmate] must demonstrate that the [] determination was arbitrary and capricious or without a rational basis.” Matter of Patel v Fischer, 67 AD3d 1193 (3rd Dept. 2009) see also Matter of Keesh v. Smith, 59 A.D.3d 798 (3rd Dept. 2009)(In order to prevail, inmate was required to demonstrate that prison officials’ determination was irrational or arbitrary and capricious).

Inmate Challenges To Decisions Made By The Central Office Review Committee (CORC)

Prison Jobs

Court found nothing irrational where prison officials removed inmate from job in recycling program because of safety and security concerns. Prison officials are accorded considerable deference in matters relating to institutional security. Furthermore, inmates have no statutory or constitutional right to any particular prison job. Matter of Green v Bradt, 69 A.D.3d 1269, 1270 (3rd Dept. 2010).

No Zipper Policy

Court found nothing irrational about prison officials’ determination that a jogging suit top qualifies as a zippered sweatshirt in violation of a Department of Correctional Services Directive which imposes a “no zippers” restriction upon sweatshirts and sweatpants. Matter of Keesh v. Smith, 59 A.D.3d 798, 799 (3rd Dept. 2009).

Inmate Receipt Of Packaged Goods

An inmate sought clarification of Department of Correctional Services Directive No. 4911 Attachment D (A) which states in relevant part that

items, except for fresh fruits and vegetables, must be received commercially packaged in airtight hermetically sealed containers impervious to external influence (e.g., sealed cans, heat sealed plastic bags, vacuum sealed pouches, vacuum sealed plastic jars, glue sealed paper or cardboard boxes with the inside product being hermetically sealed, etc.)

The grievance was ultimately denied by CORC which found that “all food items packaged in glue sealed paper must have the inside product hermetically sealed.” The inmate filed an Article 78 which was dismissed by the Supreme Court. On appeal, the Third Department found that to require a product that is packaged in a vacuum sealed container that is hermetically sealed with glued paper or foil to have it inside product also hermetically sealed was redundant and therefore “an irrational interpretation of the directive.”  Matter of Frejomil v Fischer, 68 A.D.3d 1371, 1372 (3rd Dept. 2009). Consequently, the Third Department held “CORC’s denial of that part of [the inmate’s] grievance was arbitrary and capricious.” Id.

Food Service Incentive Wage Program

Finding that inmate who was removed from FSIWP for approximately 12 months due to pending disciplinary action thus requiring him to start the program from the beginning was not arbitrary and capricious. Court found no merit to inmate’s claim that he had no break in service because he remained on program’s waiting list. Matter of Simmons v New York State Dept. of Correctional Servs., 82 A.D.3d 1382, 1383 (3rd Dept. 2011).

For more information feel free to contact attorney John Campbell at 914-837-1800 or email Mr. Campbell using the contact form on this page.

THE LAW OFFICE OF JOHN CAMPBELL
188 E. Post Road – Suite 300
White Plains, NY 10601
914-837-1800

Article 78 Generally Decided By Supreme Court Where Commenced

Unless the substantial evidence issue specified in CPLR 7803(4) is raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding.  CPLR 7804(g).  With very limited exception, Article 78 proceedings are commenced in Supreme Court.  [See CPLR 7804(a)].

Article 78 Transferred To Appellate Division Where Substantial Evidence Issue Raised Only After Court Where Commenced Rules On Any Objections That Could Result In Dismissal

Where the substantial evidence issue specified in CPLR 7803(4) is raised, the court where the Article 78 was first commenced (usually the Supreme Court) must first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue.  Only if the determination of such other objections does not terminate the proceeding, does the court then make an order directing that the Article 78 be transferred for disposition to the Appellate Division that covers the county in which the Article 78 was commenced. When the proceeding comes before it, whether by appeal or transfer, the appellate division shall dispose of all issues in the proceeding, or, if the papers are insufficient, it may remit the proceeding. [CPLR 7804(g)].

In other words, the court where the Article 78 is commenced doesn’t immediately transfer the case to the appropriate Appellate Division if the substantial evidence issue specified in CPLR 7803(4) is raised. First, the commencement court will see if there are any grounds to dismiss the proceedings without getting to the substantial evidence question such as lack of jurisdiction, statute of limitations or res judicata. Only if the there are no grounds to terminate (dismiss) the proceeding is it then transferred to the appropriate appellate division for determination of the substantial evidence issue.

For more information feel free to contact attorney John Campbell at 914-837-1800 or email Mr. Campbell using the contact form on this page.

THE LAW OFFICE OF JOHN CAMPBELL
188 E. Post Road – Suite 300
White Plains, NY 10601
914-837-1800

 

 

Once Article 78 Is Commenced, There Shall Be No Joinder Of Parties, Interpleader, Third-Party Practice or Intervention Except By Leave Of Court

After a special proceeding such as an Article 78 proceeding is commenced, “no party shall be joined or interpleaded and no third-party practice or intervention shall be allowed, except by leave of court.” CPLR 401.

Where An Article 78 Proceeding Is Brought To Restrain A Body Or Officer From Proceeding Without Or In Excess Of Jurisdiction In Favor Of Another, The Latter Shall be Joined As A Party [CPLR 7802(c)]

Where an Article 78 proceeding is brought to restrain a body or officer from proceeding without or in excess of jurisdiction in favor of another, the latter shall be joined as a party. CPLR 7802(c).

Petitioner’s Failure To Obtain Leave Of Court Prior To Joining Other Parties Renders Amended Petition a Nullity

Where petitioners fail to obtain leave to join other parties as petitioners as required by CPLR 401, the trial court properly treats the amended petition as a nullity.  Matter of Barrett v. Dutchess County Legislature, 38 A.D.3d 651 (2nd Dept. 2007) see also Bd. of Educ. v. DePace, 301 A.D.2d 521, 522 (2nd Dept. 2003)(Supreme Court correctly determined, the amended petition insofar as it purportedly was asserted against the New York State Department of Education was a nullity because the petitioner failed to comply with the requirements of CPLR 401); Aries Striping, Inc. v. Hurley, 202 A.D.2d 578 (2nd Dept. 1994)(“Since the petitioners failed to obtain leave to join the petitioner…as a party (see, CPLR 401), the court properly treated the petitioners’ cause of action…asserted…in the amended petition as a nullity.”).

For more information feel free to contact attorney John Campbell at 914-837-1800 or email Mr. Campbell using the contact form on this page.

THE LAW OFFICE OF JOHN CAMPBELL
188 E. Post Road – Suite 300
White Plains, NY 10601
914-837-1800

 

Generally, the Statute Of Limitations for an Article 78 is four months.  Section 217 of the CPLR states in pertinent part that, “a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner.”

Administrative Action Is Not Final And Binding Until It “Has Its Impact” Upon Petitioner

“A challenged determination is final and binding when it “has its impact” upon the petitioner who is thereby aggrieved.”  Edmead v. McGuire, 67 N.Y.2d 714, 716 (1986).

Statute Of Limitations Does Not Begin To Run Until Petitioner Receives Notice Of Determination

The four-month Statute of Limitations does not begin to run immediately upon the issuance of the determination but instead only begins to run when the petitioner receives notice of the determination. Biondo v. New York State Bd. of Parole, 60 N.Y.2d 832, 834 (1983).

Courts May Look Beyond The Petition To Decide Motion To Dismiss On Statute Of Limitations Ground

Initially, CPLR 7804(f) provides that an objection in point of law in a special proceeding may be raised in the answer or a pre-answer motion to dismiss.  Courts must generally look beyond the petition to decide a motion to dismiss based upon the statute of limitations.  Matter of Feldman v New York State Teachers’ Retirement Sys., 14 AD3d 769, 770 (2005).

THE LAW OFFICE OF JOHN CAMPBELL
188 E. Post Road – Suite 300
White Plains, NY 10601
914-837-1800

Exhaustion Of Administrative Remedies Doctrine

 One must exhaust all available administrative remedies before they file an Article proceeding:

The doctrine of exhaustion of administrative remedies requires

litigants to address their complaints initially to administrative

tribunals, rather than to the courts, and to exhaust all possibilities

of obtaining relief through administrative channels before appealing

to the courts.

[Young Men’s Christian Assn. v Rochester Pure Waters Dist., 37 N.Y.2d 371, 375 (1975)  see also Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52, 57 (1978)(“It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law.”)

Rationale For Exhaustion Of Administrative Remedies Doctrine

There are several reasons that support the doctrine including, but not limited to:

1.            Relieving the courts’ caseloads;

2.            Preventing premature judicial interference with an agency’s efforts to develop consistent and legally enforceable                                     schemesof regulation; and

3.            Affording the agency the opportunity to prepare a record that reflects that agency’s expertise and judgment in advance of                   possible judicial review.

[See Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52, 57 (1978)]

Administrative Appeal Must Be Decided Prior To Commencement Of Article 78 Proceeding.  Perfection Or Decision Of Appeal After Commencement Of Article 78 Does Not Operate To Retroactively Satisfy Exhaustion Of Administrative Remedies Doctrine

To be deemed exhausted, all administrative appeals or other remedies must be decided before the Article 78 is commenced.  Administrative remedies are not exhausted where a petitioner commences an Article 78 proceeding while his or her administrative appeal is still pending.  West v. McGinnis, 4 A.D.3d 654, 655 (3rd Dept. 2004).  An adverse decision received by petitioner after commencement of his or her Article 78 proceeding is of no relevance because the Exhaustion of Administrative Remedies Doctrine cannot be satisfied nunc pro tunc.  Boddie v. N.Y. State Div. of Parole, 293 A.D.2d 884 (3rd Dept.  2002).

In other words, an administrative decision rendered after commencement of an Article 78, even affirming the agency’s decision, “does not validate the petition retroactively.”  Robinson v. Bennett, 300 A.D.2d 715, 716 (3rd Dept. 2002) see also People ex rel. Howe v. Travis, 18 A.D.3d 1052 (3rd Dept. 2005)(fact that administrative appeal was decided while Article 78 was pending does not satisfy the exhaustion requirement or validate the petition nunc pro tunc).

NOTE:  There are several exceptions to the Exhaustion of Administrative Remedies requirement one of which is where resort to an administrative remedy would be futile.  This argument must be explored where respondent moves to dismiss for failure to exhaust administrative remedies.  See “Exceptions To Exhaustion Of Administrative Remedies Doctrine” section below.

Failure To Pursue Grievance Procedures In Collective Bargaining Agreement Constitutes a Failure To Exhaust Administrative Remedies Only If Petitioner Alleges Violation Of Agreement

“Generally, where a collective bargaining agreement requires that a particular dispute be resolved pursuant to a grievance procedure, an employee’s failure to grieve will constitute a failure to exhaust, thereby precluding relief under CPLR article 78.”  Barrera v. Frontier Cent. Sch. Dist., 227 A.D.2d 890, 891 (4th Dept. 1996).  However, it is not necessary for a petitioner to first pursue grievance procedure in CBA where he or she does not allege violation of CBA but instead alleges violation of law.  Id.

Exceptions To Exhaustion Of Administrative Remedies Doctrine

The Exhaustion Of Administrative Remedies Doctrine is not inflexible.  The Doctrine need not be followed, for example, when:

1.            An agency’s action is challenged as either unconstitutional or wholly beyond its grant of power;

2.            Resort to an administrative remedy would be futile; or

3.            When resort to an administrative remedy would cause irreparable injury

[See Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52, 57 (1978)]

For more information feel free to contact attorney John Campbell for a free telephone consultation at 914-837-1800.

THE LAW OFFICE OF JOHN CAMPBELL
188 E. Post Road – Suite 300
White Plains, NY 10601
914-837-1800

 

There are strict time periods that must be satisfied when serving the Petition and other pleadings in an Article 78 proceeding. Failure to comply with such time periods may result in the dismissal of the action.  This might prove fatal if the statute of limitations has expired.

Petition Must be Served at Least Twenty Days Before Return Date [CPLR 7804(c)]

Unless the court grants an order to show cause to be served in lieu of a notice of petition at a time and in a manner specified therein, a notice of petition, together with the petition and affidavits specified in the notice, shall be served on any adverse party at least twenty days before the time at which the petition is noticed to be heard.  CPLR 7804(c).

Answer Must be Served at Least Five Days Before Return Date [CPLR 7804(c)]

An answer and supporting affidavits, if any, shall be served at least five days before the return date.  CPLR 7804(c).

Reply Must be Served at Least One Day Before the Return Date [CPLR 7804(c)]

A reply, together with supporting affidavits, if any, shall be served at least one day before the return date.  CPLR 7804(c).

Where Article 78 Proceeding is Against a State Body or Officer, Service Must Also be Made Upon the State Attorney General

Where an Article 78 proceeding is brought against a state body or officers, or against members of a state body or officers whose terms have expired as authorized by CPLR 7802(b), commenced either by order to show cause or notice of petition, in addition to the other service requirements, the order to show cause or notice of petition must also be served upon the attorney general by delivery of such order or notice to an assistant attorney general at an office of the attorney general in the county in which venue of the proceeding is designated, or if there is no office of the attorney general within such county, at the office of the attorney general nearest such county.   CPLR 7804(c).

THE LAW OFFICE OF JOHN CAMPBELL

188 E. Post Road – Suite 300

White Plains, NY 10601

914-837-1800