This is an appeal from an order of the Supreme Court, Fulton County, granting respondent, Town of Johnstown, permission to file a resolution opposing a proposed annexation beyond the time provided by section 711 (subd. 2, par. b) of the General Municipal Law.
Special Term had no jurisdiction to grant the order here involved and this is so whether we consider the proceeding in the court below a special proceeding or a motion. CPLR 103 (subd. [b]) provides that: ‘‘ All civil judicial proceedings shall be prosecuted in the form of an action, except where prosecution in the form of a special proceeding is authorised. Except where otherwise prescribed by law, procedure in special proceedings shall be the same as in actions, and the provisions of the civil practice law and rules applicable to actions shall be applicable to special proceedings.” (Emphasis supplied.) Under article 17 of the General Municipal Law, the only proceeding which is authorized to be prosecuted as a special proceeding is an adjudication as to whether the annexation is in the over-all public interest (General Municipal Law, § 712). Since such a proceeding was not brought in the instant case, and there is no authorization for a special proceeding to permit late filing, Special Term did not have authority to treat this matter as a special proceeding. A special proceeding is a form of a civil judicial proceeding which must be based on specific statutory authoriza
Accordingly, the order appealed from must be reversed without prejudice to the town to follow the procedure indicated above.
The order should be reversed, on the law, without costs.
Heklihy, P. J., Staley, Jr., Sweeney and Simons, JJ., concur.
Order reversed, on the law, without costs.