Hybrid Article 78/Declaratory Judgment Practice: An Order to Show Cause Cannot Substitute for a Summons, and Access-to-Proceedings Claims Sounding in Balancing Are Not Enforceable by Mandamus

Introduction

In Matter of Nicholas v Martuscello (2026 NY Slip Op 00181 [3d Dept Jan. 15, 2026]), the Appellate Division, Third Department addressed two recurring procedural and remedial questions that arise when litigants combine a CPLR article 78 proceeding with a declaratory judgment action and seek expedited relief by order to show cause.

The petitioner, JB Nicholas, a freelance journalist who operates an online news blog, sought (i) in-person access to disciplinary hearings for DOCCS employees allegedly connected to a high-profile inmate homicide, and (ii) access to disciplinary records for named employees. He framed the case as a “hybrid” CPLR article 78 proceeding and declaratory judgment action, seeking broad declarations about public access and mandamus-style orders compelling DOCCS (through the Commissioner) to admit him to hearings and produce records. He also moved for a waiver of costs, fees, and expenses.

Supreme Court dismissed the declaratory judgment component for lack of personal jurisdiction due to the absence of a summons, dismissed the access claims insofar as they sought mandamus to compel, and denied the fee-waiver application. The Third Department affirmed in full.

Summary of the Opinion

Declaratory judgment dismissal affirmed: In a hybrid filing, service of an order to show cause (even if “deemed good and sufficient” by its terms) substitutes only for a notice of petition in the article 78 component; it does not substitute for the summons required to commence an action for declaratory judgment. Failure to serve a summons is a jurisdictional defect requiring dismissal of the declaratory judgment claims.
Mandamus to compel access denied: Even assuming common-law and constitutional rights of access are implicated, those rights require a discretionary balancing of interests; discretionary determinations cannot be compelled by mandamus, and petitioner did not show a “clear legal right” to access.
Fee-waiver denial affirmed: Under CPLR 1101, Supreme Court may deny poor-person relief where the underlying claims lack arguable merit.

Analysis

Precedents Cited

1) Personal jurisdiction and strict compliance with service rules

The court anchored the dismissal of the declaratory judgment portion in well-settled New York service doctrine:

Matter of Hyundai Capital Am., Inc. v Marina, 233 AD3d 1318 (3d Dept 2024) and Cedar Run Homeowners' Assn., Inc. v Adirondack Dev. Group, LLC, 173 AD3d 1330 (3d Dept 2019): stand for the proposition that a court lacks personal jurisdiction absent proper service, and that strict compliance is required.
Pierce v Village of Horseheads Police Dept., 107 AD3d 1354 (3d Dept 2013): reinforces that actual notice does not cure defective service; only statutorily authorized methods confer jurisdiction.

2) The procedural architecture of a hybrid filing: summons vs. notice of petition/order to show cause

The Third Department read CPLR 3001, 304(a), 306-b, 403(b), 403(d), and 7804(c) together to draw a bright line: actions (including declaratory judgment) commence with a summons (and complaint or notice), while special proceedings (including article 78) commence with a notice of petition (or an order to show cause in lieu of it) and petition.

The decision aligns with and relies upon hybrid-procedure authority recognizing that, in combined matters, each component has its own initiating process:

Matter of 301 E. 66th St. Condominium Corp. v City of New York, 224 AD3d 423 (1st Dept 2024); Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 209 AD3d 1208 (3d Dept 2022), affd 42 NY3d 936 (2024); and Matter of New York Times Co. v City of N.Y. Police Dept., 103 AD3d 405 (1st Dept 2013): cited for the key proposition that a combined action/proceeding requires service of both (i) a summons for the action and (ii) a notice of petition or order to show cause for the special proceeding.

The court also distinguished the narrow circumstances in which courts have “deemed” one initiating paper to serve as another. Petitioner relied on an exemption/tax procedural line culminating in Matter of Harrison Orthodox Minyan Inc. v Town/Village of Harrison, 239 AD3d 156 (2d Dept 2025), which (quoting Matter of Greenberg v Assessor of Town of Scarsdale, 121 AD3d 986 [2d Dept 2014]) deemed a notice of petition a summons in a particular remedial conversion context. The Third Department held that framework inapposite because Nicholas’s pleading asserted distinct causes of action seeking relief under both CPLR article 78 and a plenary declaratory judgment action, rather than a claim that could be pursued interchangeably through alternative procedural vehicles.

3) The limited role of an order to show cause

The court clarified that an order to show cause is an authorized substitute for a notice of petition—not for a summons—relying on:

Matter of Fry v Village of Tarrytown, 89 NY2d 714 (1997) (and, by contrast, the “cf.” authorities Matter of Sorli v Conveney, 51 NY2d 713 [1980]; Matter of Robins v Rosa, 225 AD3d 1110 [3d Dept 2024]; Matter of Czajka v Dellehunt, 125 AD3d 1177 [3d Dept 2015]; Matter of Keith X. v Kristin Y., 124 AD3d 1056 [3d Dept 2015]): used to confirm that orders to show cause function within special proceeding mechanics, not as replacements for the summons required to commence an action.

4) CPLR 2001 does not salvage a complete failure to serve the initiating process for an action

Rejecting any “substantial compliance” rescue theory, the Third Department emphasized that a complete failure to file/serve the initial papers necessary to institute an action falls outside CPLR 2001’s corrective discretion, relying on: Park Premium Enters., Inc. v Norben Lofts, LLC, 220 AD3d 661 (2d Dept 2023); Goldenberg v Westchester County Health Care Corp., 16 NY3d 323 (2011); Wesco Ins. Co. v Vinson, 137 AD3d 1114 (2d Dept 2016); and Ruffin v Lion Corp., 15 NY3d 578 (2010).

5) Mandamus, discretionary balancing, and access rights

The court’s mandamus analysis turned on the distinction between mandatory and discretionary governmental acts:

Matter of Melendez v New York State Dept. of Corr. & Community Supervision, 240 AD3d 1111 (3d Dept 2025) and Matter of Clements v New York Secretary of State, 227 AD3d 84 (3d Dept 2024): define mandamus as available only to compel mandatory, nondiscretionary acts when a clear legal right exists.
Matter of Common Cause N.Y. v Kosinski, 241 AD3d 1036 (3d Dept 2025) and Alliance to End Chickens as Kaporos v New York City Police Dept., 32 NY3d 1091 (2018): used to articulate what counts as “mandatory” versus “discretionary.”
Matter of Clarke v Azar, 233 AD3d 1396 (3d Dept 2024): provides the pleading-stage standard (accept allegations as true and draw inferences for petitioner) on a motion to dismiss.

On the specific access theory, the court assumed arguendo that common-law and constitutional access doctrines could apply, but stressed they are not absolute:

Press-Enterprise Co. v Superior Ct. of Cal. for Riverside County, 478 US 1 (1986); Matter of Herald Co. v Weisenberg, 59 NY2d 378 (1983); and Danco Labs. v Chemical Works of Gedeon Richter, 274 AD2d 1 (1st Dept 2000): establish that access can be overcome by countervailing interests.
Matter of Crain Communications v Hughes, 74 NY2d 626 (1989) and Matter of Daily News, L.P. v Wiley, 126 AD3d 511 (1st Dept 2015): supply the crucial bridge to mandamus doctrine—because access determinations require balancing, they involve discretion and “preclude mandamus.”

The “clear legal right” requirement was reinforced through: Matter of Thornton v Saugerties Cent. Sch. Dist., 145 AD3d 1138 (3d Dept 2016) and Matter of Association of Surrogates & Supreme Ct. Reporters within City of N.Y. v Bartlett, 40 NY2d 571 (1976), alongside a string of New York access/confidentiality cases cited “generally” to show the contested, context-dependent nature of access: Matter of James Q., 32 NY3d 671 (2019); Matter of McBarnette v Sobol, 83 NY2d 333 (1994); Doe v Office of Professional Med. Conduct of N.Y. State Dept. of Health, 81 NY2d 1050 (1993); Matter of Johnson Newspaper Corp. v Melino, 77 NY2d 1 (1990); Matter of Herrick v Town of Colonie, 211 AD3d 1146 (3d Dept 2022); and Matter of Doe v City of Schenectady, 84 AD3d 1455 (3d Dept 2011).

6) Fee waivers under CPLR 1101 and “arguable merit”

The court’s affirmance of the fee-waiver denial rested on the statutory affidavit requirements and the judicial gatekeeping function that the claim not be frivolous:

Eckert v Meadows, 216 AD3d 1397 (4th Dept 2023): cited for the proposition that courts should satisfy themselves the action is not frivolous and has arguable merit.
People ex rel. Johnson v Uhler, 191 AD3d 1065 (3d Dept 2021) and Matter of Roesch v State of New York, 187 AD3d 1651 (4th Dept 2020): support denying waivers when claims lack arguable merit.

7) Mootness (not dispositive, but addressed)

The court noted, based on respondent’s representations, that some hearings occurred and some employees resigned, mooting parts of the requested relief, citing Cooke v Greenhouse Hudson, LLC, 230 AD3d 841 (3d Dept 2024). Because it was unclear whether any hearings remained, the court reached the merits.

Legal Reasoning

A. The procedural holding: hybrid filings require hybrid process

The central procedural rule is straightforward: a declaratory judgment claim is an “action” (CPLR 3001) and must be commenced by service of a summons (CPLR 304[a]); an article 78 claim is a “special proceeding” and must be commenced by service of a notice of petition or, alternatively, an order to show cause (CPLR 403[d]; CPLR 7804[c]).

The petitioner served an order to show cause and supporting papers, but did not serve a summons. The order to show cause’s language deeming service “good and sufficient” could not enlarge jurisdiction beyond what the CPLR authorizes. At most, the order to show cause validated service for the special proceeding side; it could not bootstrap the action side. Because New York requires strict compliance with service statutes to confer personal jurisdiction, and because actual notice is irrelevant, dismissal of the declaratory judgment component was required.

B. The remedial holding: access determinations involve discretion, so mandamus does not lie

Mandamus compels only nondiscretionary duties. The petitioner attempted to frame access to disciplinary hearings and records as a right under common-law and constitutional access doctrines, but those doctrines themselves require a balancing of the asserted access interest against countervailing interests (e.g., institutional security, privacy, integrity of proceedings). That balancing is quintessentially discretionary.

Therefore, even crediting the premise that access rights are implicated, the remedy sought—an order compelling access—does not match the nature of the legal duty. The petitioner could not show a right “so clear as not to admit of reasonable doubt or controversy,” and mandamus was properly denied.

C. Fee-waiver discretion: courts may assess arguable merit

CPLR 1101 permits waiving costs for a litigant of insufficient means, but it also requires enough factual showing for the court to assess the claim’s merit. The Third Department affirmed the denial because the underlying claims lacked arguable merit, making denial a permissible exercise of discretion.

Impact

Practice impact (hybrid filings): The decision reinforces a procedural trap: serving only an order to show cause in a hybrid matter may successfully commence the article 78 component while leaving the declaratory judgment component jurisdictionally dead on arrival. Practitioners must serve both instruments (summons for the action; notice of petition or order to show cause for the proceeding) to preserve both tracks.
Public-access litigation strategy: For journalists and transparency advocates seeking access to disciplinary or quasi-adjudicatory proceedings within correctional systems, the decision cautions against relying on mandamus where the governing standard entails balancing. Claimants may need to pursue relief that matches discretionary decision-making (e.g., targeted declaratory/injunctive relief with a developed factual record), rather than trying to compel access as a purely ministerial duty.
Institutional discretion preserved: DOCCS and similar agencies retain room to argue countervailing interests on access questions, with courts treating the determination as discretionary rather than automatically compelled by generalized access principles.
Gatekeeping on fee waivers: The case underscores that CPLR 1101 applications can fail on merits screening, not only financial showing.

Complex Concepts Simplified

“Action” vs. “special proceeding”: An action (like a declaratory judgment) is commenced by serving a summons. A special proceeding (like CPLR article 78) is commenced by serving a notice of petition (or an order to show cause instead of that notice).
Hybrid (combined) CPLR article 78 + declaratory judgment: A single filing can contain both, but each claim keeps its own procedural “entry ticket.” Serving only special-proceeding papers does not start the action side.
Order to show cause: A court-signed document that sets a return date and method of service, commonly used to speed up special proceedings. Here, it could replace only the notice of petition—not the summons required for an action.
Personal jurisdiction: The court’s power over a party. In New York, jurisdiction typically requires strict statutory service of the correct initiating papers; actual notice alone is not enough.
Mandamus to compel: An extraordinary remedy that orders a public official to perform a mandatory duty. It cannot be used to force how an official exercises discretion—especially where the law requires balancing competing considerations.
“Arguable merit” (CPLR 1101): Even if a litigant is poor, the court may deny a fee waiver if the claims appear frivolous or lack a reasonable legal basis.

Conclusion

Matter of Nicholas v Martuscello delivers a clear procedural directive for New York hybrid litigation: an order to show cause initiates only the special proceeding side; it does not replace the summons needed for declaratory judgment jurisdiction. Substantively, the decision reinforces that where asserted access rights require balancing against countervailing interests, the resulting determination is discretionary and cannot be compelled by mandamus. Finally, it confirms courts may deny CPLR 1101 fee waivers when the underlying claims lack arguable merit.