When the respondent in an article 78 proceeding challenges petitioner's standing only, it is error to dismiss the
Petitioner union represents the adult education instructors employed by respondent Board of Cooperative Educational Services of Nassau County (BOCES). The union, and its president, as class representative, brought this article 78 proceeding as a class action on behalf of all of the adult education instructors. The relief sought is a determination that the instructors are entitled to tenure and seniority rights under section 3014 of the Education Law and the Rules of the Board of Regents (8 NYCRR part 30). The petition alleges that such rights have not been waived.
Respondents moved to dismiss the petition on the ground that petitioner lacks standing because neither the union nor its president belong to the class of adult education instructors and because, according to respondents, neither has been injured by the denial of tenure and seniority rights. The motion papers also argued that class action status was improper because individual instructors had signed express waivers of tenure rights and, therefore, a case-by-case determination of the rights of the instructors was required. Petitioner's answering papers asserted that a union has standing to represent its members and also objected to factual allegations made in the affidavit accompanying respondents' motion on the ground that the affidavit was made by an attorney who lacked personal knowledge of the facts.
Although, as respondents argue, an article 78 proceeding "on analysis closely correspond[s] to an action if a motion for summary judgment could be made simultaneously with the commencement of the action" (8 Weinstein-Korn-Miller, NY Civ Prac, par 7801.03), it is also true that a motion for summary judgment is usually made only "after issue has been joined" (CPLR 3212, subd [a]) and that a motion to dismiss may be treated as a motion for summary judgment only when the parties have had the opportunity to "submit any evidence that could properly be considered on a motion for summary judgment" (CPLR 3211, subd [c]). Thus, notice that a motion to dismiss under CPLR 3211 will be treated as a motion for summary judgment is required prior to dismissal on the merits unless it is clear from the papers that no prejudice has resulted from omission of notice (Rich v Lefkovits, 56 N.Y.2d 276, 283).
The more particularly is this so with respect to an article 78 proceeding, in light of the express direction of CPLR 7804 (subd [f]), quoted at the beginning of this opinion. It has, therefore, been held that the petition in such a proceeding should not be granted before the respondent has filed an answer (Edison Travel v American Airlines, 35 N.Y.2d 801, affg 43 A.D.2d 164; Hawk Sales Co. v Dieteman, 42 A.D.2d 817, 818; Matter of Kesterson v City of Buffalo, 40 A.D.2d 575; see Subcontractors Trade Assn. v Koch, 62 N.Y.2d 422; O'Hara v Del Bello, 47 N.Y.2d 363, supra; Marlow v Kobliner, 78 A.D.2d 874; Matter of De Vito v Nyquist, 56 A.D.2d 159, 161, affd 43 N.Y.2d 681).
Accordingly, the proceeding should be remitted to Special Term for further proceedings in accordance with this opinion.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, with costs, and matter remitted to Supreme Court, Nassau County, for further proceedings in accordance with the opinion herein.