Levien v. Board of Zoning & Appeals

Berítard S. Meyer, J.

The papers on this motion to dismiss an article 78 proceeding are somewhat confused because respondents ’ counsel has misconceived the applicability to such a proceeding of CPLR 3211 (subd. [c]) and put into his supporting affidavits much of the pleading and evidence that should have gone into an answer and return. An article 78 proceeding is a special proceeding (CPLR 7804, subd. [a]), intended to be summarily decided ‘ ‘ upon the pleadings, papers and admissions to the .extent that no triable issues of fact are raised ” (CPLR 409, subd. [b]), and to be tried forthwith…