Szklowin v. Planning Board

OPINION OF THE COURT

Albert M. Rosenblatt, J.

Petitioner commenced this article 78 proceeding within the four-month limitations period (CPLR 217).

Respondent has moved to dismiss on the ground that the petition was made returnable upon only 19 days’ notice, one day short of the 20 days’ notice provision under CPLR 7804 (subd [c]). The issue is whether this defect is jurisdictional and thereby fatal, despite the absence of prejudice, advantage, or delay.

In Matter of Ready Mix & Supply Corp. v State Tax Comm. (63 AD2d 1004), the Appellate Division, Third Department, upon constraint of Matter of'…