Article 78, CPLR § 7801(1)


CPLR § 7801(1) Nature of Proceeding

Dreyer v City of Saratoga Springs, 2006 NY Slip Op 52618(U) (Sup Ct, Saratoga County) — I have no idea why a 2006 case made it to the New York Official Reports today.  What's more strange is that the case that affirmed it is a 2007 Slip Op (Matter of Dreyer v City of Saratoga Springs, 2007 NY Slip Op 06386, 43 A.D.3d 586, 840 N.Y.S.2d 680 [App. Div., 3rd])

CPLR 7801 (1) precludes judicial review of determinations which are
"not final". The rationale is that a court ought not issue advisory
New York Public Interest Research Group, Inc. v Carey,
42 NY2d 527, 529 (1977). Judicial review is permitted only when there
exists an actual controversy, a genuine legal dispute, not contingent
upon events which may or may not occur.
see Matter of New York State Inspection, Sec. & Law Enforcement Employees v Cuomo, 64 NY2d 233, 240 (1984); Matter of Rubin v New York State Educ. Dept.,
210 AD2d 550 (3rd Dept 1994). An action taken by a municipality is not
ripe for judicial review until such action inflicts an actual, concrete
injury to the party which challenges that action.
Church of St. [*4]Paul & St. Andrew v Barwick, 67 NY2d 510, 519 (1986); Matter of Town of Coeymans v City of Albany, 237 AD2d 856 (3rd Dept 1997), lv denied
90 NY2d 803 (1997). Stated another way, a challenged determination is
final and binding when it " has its impact' upon the petitioner who is
thereby aggrieved".
Matter of Edmead v McGuire, 67 NY2d 714, 716 (1986); Matter of Maurer v State Emergency Management Office, 13 AD3d 751, 753 (3rd Dept 2004).

Dreyer, of course, was impacted and thus aggrieved when the City
Attorney notified her attorney that no defense would be provided her in
the Cornick litigation.
To avoid a default judgment, she had to interpose at her personal expense a legal defense in the Cornick
action. City Code § 9-1, the predicate for Dreyer's demand for a
defense, sets forth no standardized procedure for addressing an
employee's request for a legal defense. Section 9-1 does not require
that the City Council adopt a formal resolution one way or the other.
That a resolution was adopted in regard to Dreyer's earlier, identical
request in the Moore case does not mean that City Attorney's
letter, which conveyed unequivocally the message that the City would
not provide a defense to her in Cornick , was not a final
determination. To accept the City's argument would impermissibly permit
the City to place Dreyer's request for a defense in a legal limbo
simply by not acting by formal resolution. The City Attorney's letter
constitutes municipal action which impacted and aggrieved Dreyer. Thus,
Dreyer's second claim for defense presents a controversy just as
justiciable as her first, and both are ripe for determination. The
City's objection in point of law lacks merit and is dismissed, without

All the bold is mine.