IN RE: NEW YORK CIVIL LIBERTIES UNION (2024)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about October 16, 2023, which denied a motion by petitioner New York Civil Liberties Union (N.Y.CLU) to compel discovery on its declaratory judgment claims, unanimously reversed, on the law, without costs, the notice of petition converted into a summons, and the matter remanded for further proceedings consistent with this decision.

In this hybrid article 78 proceeding and declaratory judgment action arising from a request for records under the Freedom of Information Law (FOIL), Supreme Court erred in denying petitioner's motion (CPLR 103[c]).  Initially, NYCLU properly filed a notice of petition and petition/complaint, thus Supreme Court had subject matter jurisdiction over NYCLU's declaratory judgment action despite its failure to file and serve a summons (see CPLR 304[a]).  As NYCLU's timely notice of petition and petition/complaint sufficed to give notice of an intention to commence the declaratory judgment action, Supreme Court should have converted the notice of petition into a summons to permit review of NYCLU's declaratory judgment claims on the merits (see CPLR 103[c];  Matter of Greenberg [Ryder Truck Rental], 110 A.D.2d 585, 586, 487 N.Y.S.2d 797 [1st Dept. 1985]).

The court also erred when it denied the motion on the basis that its prior order, which partially granted NYCLU's article 78 petition, resolved NYCLU's declaratory judgment action so that there was no “ripe controversy” to be decided.  The text of the prior order does not support this characterization.  In a hybrid action, separate procedural rules apply to those causes of action asserted under CPLR article 78, and those causes of action seeking declaratory relief (see Matter of Ballard v. New York Safety Track LLC, 126 A.D.3d 1073, 1075, 5 N.Y.S.3d 542 [3d Dept. 2015]), and the court did not find that article 78 relief was an adequate alternative remedy to declaratory relief (see Matter of Morgenthau v. Erlbaum, 59 N.Y.2d 143, 148, 464 N.Y.S.2d 392, 451 N.E.2d 150 [1983], cert denied 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 [1983]).  This Court is not the proper forum for resolution, in the first instance, of the adequacy of alternative relief or the merits of NYCLU's declaratory action.  Likewise, the court should also have reached the merits of respondents' cross-motion to dismiss the declaratory judgment action or strike NYCLU's discovery demands.  Accordingly, the matter is remanded for adjudication of NYCLU's motion and respondents' cross-motion.

This Court's prior holding that certain records sought in the FOIL request are subject to the attorney-client and work product privileges (New York Civil Liberties Union v. New York State Office of Court Admin., 224 A.D.3d 458, 459, 205 N.Y.S.3d 17 [1st Dept. 2024]) constitutes the law of the case applicable on remand (see Morrison Cohen, LLP v. Fink, 92 A.D.3d 514, 515, 938 N.Y.S.2d 309 [1st Dept. 2012], lv dismissed 19 N.Y.3d 1017, 951 N.Y.S.2d 713, 976 N.E.2d 241 [2012]).