Capital Equity Mgt., LLC v Sunshine

[*1] Capital Equity Mgt., LLC v Sunshine 2021 NY Slip Op 21319 Decided on November 29, 2021 Supreme Court, Kings County Silber, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on November 29, 2021
Supreme Court, Kings County

Capital Equity Management, LLC, Petitioner,

against

Nancy T. Sunshine, in her official capacity as KINGS COUNTY CLERK, and CLERK OF THE SUPREME COURT, KINGS COUNTY, Respondent.



Index No. 522142/2020
Debra Silber, J.

The following e-filed papers read herein/NYSCEF Doc. Nos.:

Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-9

Opposing Affidavits/Answer (Affirmations) 25

Affidavits/ Affirmations in Reply 26\

Other Papers:

Upon the foregoing papers, petitioner Capital Equity Management, LLC (Capital Equity), petitions pursuant to CPLR 7803 (1) for a writ of mandamus compelling respondent Nancy T. Sunshine, in her official capacity as Kings County Clerk and the Clerk of the Supreme Court, Kings County (County Clerk), to process its default judgment application for a renewal judgment in the same manner as she would process any other default judgment application for a sum certain under CPLR 3215 (a), without regard to the fact that the action was brought for a renewal judgment pursuant to CPLR 5014 (1) (motion sequence number 1).

The petition is granted for the reasons which follow, and the County Clerk is directed to process petitioner's default judgment application, which was submitted to the County Clerk on or about September 20, 2020, pursuant to CPLR 5014 (1), entitled Capital Equity Management, LLC v Rosalie Blair, Index No. 3651/19 (Underlying Action), in the same manner as the County Clerk would process any other default judgment application involving a claim for a sum certain under CPLR 3215 (a). In so directing, the court emphasizes that it has only determined that the default judgment application involves a claim for a sum certain, and that it was made within a year of the purported default, and the court makes no determination as to whether the default [*2]judgment application papers submitted by petitioner in the Underlying Action otherwise satisfy the statutory requirements.

In this case, Capital Equity obtained a judgment in a Civil Court, Kings County action for the amount of $11,013.00, that was entered by the Civil Court Clerk on July 6, 2010. A transcript of the Civil Court judgment was filed with the County Clerk for docketing on July 19, 2010. On October 7, 2019, Capital Equity commenced the Underlying Action for a renewal judgment pursuant to CPLR 5014 (1) against the defendant judgment debtor in the Civil Court action. Defendant failed to appear, and on or about December 29, 2019, Capital Equity submitted a default judgment application to the County Clerk. This application was denied because, as a Deputy County Clerk stated on the rejection form to counsel for Capital Equity, "After further discussion with Commissioner Sunshine and her counsel and after review of CPLR 5014 on the issue as to whether a court order is required to file a renewal judgment, it is the position of the County Clerk that a court order is required in order for you to file the renewal judgment."

In order to obtain a court order, a plaintiff has to file an RJI and bring a motion, either for a default judgment pursuant to CPLR 3215 or for summary judgment in lieu of complaint, pursuant to CPLR 3213. This entails an RJI fee of $95 and a motion fee of $45. At oral argument, plaintiff's counsel further argued that a motion can take months.

Capital Equity then commenced a CPLR article 78 proceeding (Capital Equity Management, LLC, v Sunshine, Index No. 510116/2020) for a writ of mandamus compelling the County Clerk to process the default application in the Underlying Action, claiming that a renewal judgment under CPLR 5014 (1) constitutes a claim for a sum certain under CPLR 3215 (a) which may be made to the County Clerk. This court, in an order dated September 16, 2020, denied this petition because the original judgment was not provided, and the judgment was from Civil Court and there was no showing that it was ever docketed by the County Clerk as is required for a renewal judgment under CPLR 5014 (1).

On or about September 20, 2020, Capital Equity submitted a new application for a renewal judgment on default in the Underlying Action to the County Clerk that included, inter alia, the affidavit of service, an attorney affirmation attesting to the default, an affidavit of facts that contains an assertion that the judgment has not been satisfied in whole or part, and copies of the Civil Court judgment and a transcript of the judgment filed with the County Clerk.[FN1] On or around October 27, 2020, the County Clerk returned the application for a renewal judgment on default, along with a rejection notice dated October 27, 2020, (Doc 6) stating that the application was being returned because "Renewal judgments are done by order of the court. Clerk has no authority to enter."[FN2]

In response, Capital Equity commenced this special proceeding on November 9, 2020 [*3]and seeks a writ of mandamus compelling the County Clerk to process the default application that was submitted in the underlying action on or around September 20, 2020. In an order dated June 25, 2021, this court denied the County Clerk's motion to dismiss and granted her time to submit an answer. In the answer, the County Clerk asserts that: (1) case law shows that judicial intervention is required to obtain a renewal judgment under CPLR 5014; (2) the default application here is not one for a sum certain, because there must be evidentiary proof establishing whether the judgment has been satisfied in the intervening years; (3) the determination to require a court order is not an error of law, nor is it arbitrary and capricious (CPLR 7803); and (4) Capital Equity has failed to join a necessary party, in that the defendant judgment debtor in the Underlying Action was not named in or served with the petition.

"Mandamus . . . is an extraordinary remedy that, by definition, is available only in limited circumstances" (Klostermann v Cuomo, 61 NY2d 525, 537 [1984]; see Matter of Mensch v Planning Bd. of the Vil. of Warwick, 189 AD3d 1245, 1247 [2d Dept 2020], lv denied 33 NY3d 910 [2019]; Matter of Kleinknecht v Siino, 165 AD3d 936, 938 [2018]). "'[T]he remedy of mandamus is available to compel a governmental entity or officer to perform a ministerial duty, but does not lie to compel an act which involves an exercise of judgment or discretion'" (Matter of Willows Condominium Assn. v Town of Greenburgh, 153 AD3d 535, 536 [2d Dept 2017], quoting Matter of Brusco v Braun, 84 NY2d 674, 679 [1994]). "A discretionary act 'involve[s] the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result'" (Matter of Willows Condominium Assn. v Town of Greenburgh, 153 AD3d at 536, quoting Tango v Tulevech, 61 NY2d 34, 41 [1983]). Given that a writ of mandamus to compel is governed by CPLR 7803 (1), which addresses "whether the body or officer failed to perform a duty enjoined upon it by law," the County Clerk's assertion that its determination was not "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803 [3]) involves an argument based on the wrong legal standard (see Matter of Krug v City of Buffalo, 34 NY3d 1094, 1095 n1 [2019]). In view of the standard of review for a writ of mandamus to compel, at issue is whether the County Clerk had a ministerial duty to process Capital Equity's September 20, 2020 default judgment application pursuant to CPLR 5014 (1) in the same manner as one submitted pursuant to CPLR 3215 (a).

Here, the Underlying Action (3651/2019) was an action for a renewal judgment pursuant to CPLR 5014 (1). Although a New York money judgment is enforceable for 20 years (see CPLR 211 [b]), a real property lien resulting from the judgment is viable for only 10 years (see CPLR 5203 [a]). For this reason, the Legislature enacted CPLR 5014 to, inter alia, give a judgment creditor an opportunity to extend the life of the lien by commencing an action for a renewal judgment by the judgment creditor. (see Gletzer v Harris, 12 NY3d 468, 473 [2009]; Rose v Gulizia, 104 AD3d 757, 757-758 [2d Dept 2013]). A thorough article on the subject of renewal judgments was recently published, "Bringing Old Judgments Back to Life," NYLJ 6/29/21.

CPLR 5014 calls for the commencement of an action. An action is the case type for prosecuting any civil proceeding other than a special proceeding (CPLR 103 [b], 105 [b]) and [*4]CPLR 3215 [a]). [FN3] The CPLR provision governing defaults, CPLR 3215, includes those based on a failure to appear in an action, and generally applies to defaults in all civil actions (see Reynolds Sec. v Underwriters Bank & Trust Co., 44 NY2d 568, 572 [1978]; cf. Matter of Brusca, 84 NY2d at 681).[FN4] Given the broad scope of CPLR 3215, and the absence of any statutory provision excluding renewal judgments from its coverage, this court finds that a default on a CPLR 5014 action for a renewal judgment falls within the procedures in CPLR 3215 (a). Under CPLR 3215 (a), a plaintiff may apply for a default judgment with the County Clerk where the application is made within one year of the default and the application is one on a claim for "a sum certain or for a sum which can by computation be made certain." A party is only required to apply for a default judgment from the court "[w]here the case is not one in which the clerk can enter judgment" (CPLR 3215 [a]).

Here, there is no dispute that the plaintiff's application was made within a year of the alleged default in the 2019 action. As such, this court's determination turns on whether Capital Equity's claim is one for a sum certain. The Court of Appeals, in Reynolds Security Inc. v Underwriters Bank & Trust (44 NY2d 568), stated that "[t]he term 'sum certain' in this context contemplates a situation in which, once liability has been established, there can be no dispute as to the amount due, as in actions on money judgments and negotiable instruments. Obviously, the clerk then functions in a purely ministerial capacity" (id. at 572; see 21st Mtge. Corp. v Raghu, 197 AD3d 1212, 1217 [2d Dept 2021]; Qiang Tu v Li Shen, 190 AD3d 1125, 1128 [3d Dept 2021]). Where the claim is for a sum certain, there is no need for the judicial evaluation of extrinsic proof regarding the amount of damages to be awarded. (Reynolds Sec., 44 NY2d at 572-573).

Capital Equity's claim in its action for a renewal judgment is based on a prior money judgment and falls squarely within the kind of claim deemed to constitute one for a sum certain [*5]by the Court of Appeals in Reynolds Sec. (Reynolds Sec., 44 NY2d at 572-573; Serkey v Gladstein, 40 Misc 2d 962, 963 [Sup Ct, New York County 1963]). The amount of the Civil Court judgment that was docketed with the County Clerk is a sum certain. The amount sought in the Underlying Action for a renewal judgment is simply the amount due under the Civil Court judgment plus the statutory interest that has accrued on the judgment in the intervening years (CPLR 5003, 5004) and which, even if not a sum certain, undoubtedly constitutes a "sum which can by computation be made certain" (CPLR 3215 [a]; see Serkey, 40 Misc 2d at 963; Union of Orthodox Jewish Congregations of America v Fleet Technologies, LLC, 2008 WL 163583, *6 [U] [DNJ 2008]). As such, there is no need for extrinsic proof on the issue of damages. There is only the statutory requirement for the "requisite proof," (3215 [a], which means an affidavit from someone with personal knowledge, or a verified complaint, verified by the plaintiff and not its attorney, that the judgment remains unsatisfied.

Contrary to the County Clerk's contentions, there is nothing unique about a CPLR 5014 action for a renewal judgment that would require a judge to review a default judgment application. Just as in any other case seeking a default judgment before the County Clerk on a sum certain claim, the issue of whether the court obtained jurisdiction over defendant is met by the submission of the affidavit of service (CPLR 3215 [f]). Any issue relating to the non-payment of the judgment by the judgment debtor (Rose, 104 AD3d at 758; see Lull v Van Tassel, 171 AD3d 1155, 1156-1157 [2d Dept 2019]; Premier Capital, LLC v Best Traders, Inc., 88 AD3d 677, 678 [2d Dept 2011]) is demonstrated by defendant's default, which requires a court to deem as admitted all allegations of the complaint, as well as by the affidavit of facts submitted with the default application or the verified complaint for the renewal judgment verified by the plaintiff (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 70 [2003]; Chase Manhattan Bank (N.A.) v Evergreen Steel Corp., 91 AD2d 539, 539-540 [1st Dept 1982]; Serkey, 40 Misc 2d at 963; CPLR 3215 [a], [f]).

The County Clerk, however, asserts that the case law addressing CPLR 5014 demonstrates that the determination of a renewal judgment goes beyond the ministerial duties of a clerk on a CPLR 3215 (a) motion. This assertion, however, is based upon statements that are largely taken out of context, from cases that do not address whether an application for a default judgment in an action for a renewal judgment may be made to the Clerk (see Gletzer, 12 NY3d at 477; Gletzer v Harris, 51 AD3d 196, 202 [1st Dept 2008], affd 12 NY3d 468 [2009]; Premier Capital, Inc. v DeHann, 122 AD3d 1414, 1415 [4th Dept 2014], lv denied 24 NY3d 1102 [2015]; Baiz v Baiz, 10 AD3d 375, 376-377 [2d Dept 2004]; Curia v Brooks, Weinger, Robbins & Leeds, 182 Misc 2d 36, 39 [Bronx Civil Court 1999]). For example, the decision in Nanas v Govas (176 AD3d 956 [2d Dept 2019]) cited by the County Clerk actually cuts against the County Clerk's argument, since the court in Nanas denied defendant's CPLR 5015 (a) (1) motion to vacate a default judgment in an action for a renewal judgment that was entered by the County Clerk upon defendant's default in appearing, which was then affirmed by the Appellate Division. (see Nanas v Govas, 2018 NY Slip Op 32676, *1 [U] [Sup Ct, Kings County 2018]; Nanas v Govas, index No. 518706/2016, New York State Courts Electronic Filing [NYSCEF] doc. No. 22).

The court notes that several of the cases relied upon by the County Clerk were brought as CPLR 3213 actions for summary judgment in lieu of a complaint (Lull, 171 AD3d at 1156-1157; Jones Morrison LLP v Schloss, 155 AD3d 704, 705 [2d Dept 2017]; Premier Capital, LLC, 88 [*6]AD3d at 678).[FN5] Since a case brought under CPLR 3213 is given a return date and ends up on a motion calendar, a defendant's default in appearing in such a case will generally lead to the default being determined by a court order rather than an application to the County Clerk (see Hon. Mark C. Dillon, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3213:20). Under CPLR 3213, the decision to commence the action for a renewal judgment under that section is entirely at the option of the plaintiff.[FN6] There is nothing in CPLR 5014 or the case law addressing it which suggests that proceeding by way of CPLR 3213 is required for a renewal judgment, or that commencing an action with the filing of a summons and complaint and then seeking a default judgment from the County Clerk upon a defendant's failure to appear would in any way be improper. Indeed, the fact that a plaintiff may bring a CPLR 5014 action for a renewal judgment as a CPLR 3213 claim also suggests that an action for a renewal judgment involves a claim for a sum certain that is appropriately addressed by the County Clerk on a default. This is because claims allowed under CPLR 3213 are limited to claims on judgments or on instruments "for the payment of money only" for which no outside proof is needed to determine the amount due and no hearing on damages is generally required (see Weissman v Sinorm Deli, Inc., 88 NY2d 437, 444-445 [1996]; US Premium Fin. v Sky Materials Corp., 182 AD2d 629, 629-630 [2d Dept 2020]; Hon. Mark C. Dillon, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3213:16; 5 Wests' McKinney's Forms Civil Practice Law and Rules § 5:214 [d] [February 2021 update] [online treatise]).

In sum, even though many of the cases cited by the County Clerk involve court orders, nothing in those cases suggests that a CPLR 5014 action for a renewal judgment requires a court order. Moreover, contrary to the County Clerk's contention, the County Clerk's recent determination that actions for renewal judgments on default require a court order is not entitled to any special deference by the court, because the interpretation of the statutory sections at issue does not involve any special expertise possessed by the County Clerk and involves only a question of statutory interpretation (see Matter of Ovadia v Office of the Indus. Bd. of Appeals, 19 NY3d 138, 144 n5 [2012]; Matter of Universal Metal & Ore, Inc. v Westchester County Solid Waste Commn., 145 AD3d 46, 54 [2d Dept 2016]).

This court further finds that mandamus lies, since, under the circumstances here, the County Clerk had a ministerial obligation to process Capital Equity's default judgment application. The required determination that the application was made within one year of the default is readily made and involves no discretionary findings. Similarly, as noted above, since an action on a judgment falls squarely within the kind of claim deemed to constitute one for a sum certain (Reynolds Sec., 44 NY2d at 572-573; Serkey, 40 Misc 2d at 963 [Sup Ct, New York County 1963]; see also Qian Tu, 190 AD3d at 1128; Morgenthau v Rodriguez, 261 AD2d 165, [*7]165-166 [1st Dept 1999]; Himelein v Frank, 155 AD2d 964, 965 [4th Dept 1989]), the County Clerk is not required to make any discretionary determinations when considering the application (see Matter of Brusco, 84 NY2d at 679-680; Klosterman, 61 NY2d at 539-540; Matter of Margolis v New York State Dept. of Motor Vehs., 170 AD3d 843, 845-846 [2d Dept 2019]; Matter of Casser v Condon, 165 AD3d 1208, 1208-1209 [2d Dept 2018]; Matter of Liang v Hart, 132 AD3d 765, 765-766 [2d Dept 2015]; Matter of National Equip. Corp. v Ruiz, 19 AD3d 5, 15 [1st Dept 2005]; Matter of County of Albany v Connors, 300 AD2d 902, 903-904 [3d Dept 2002]; see also Matter of Weinstein v Haft, 60 NY2d 625, 627 [1983]; cf. Matter of Dyno v Rose, 260 AD2d 694, 697-698 [3d Dept 1999]).

While on occasion, a default judgment application may be submitted to the County Clerk which involves a claim that seems to be pushing the boundary of what is considered a sum certain, thereby entitling the County Clerk to make a discretionary decision not to entertain it, and to require the plaintiff to seek a court order, this case does not involve one of those "boundary calls." Moreover, the County Clerk rejected this plaintiff's application based on a blanket policy decision that the County Clerk would no longer process default judgments in actions brought pursuant to CPLR 5014 for renewal judgments, rather than on the particular facts of Capital Equity's application. In other words, to the extent that the County Clerk does have discretion to reject an application for a default judgment, the County Clerk failed to exercise any discretion in this matter, since the application was rejected based on this new policy.

Finally, the court rejects the County Clerk's assertion that the petition must be denied because Capital Equity failed to join a necessary party. Although Capital Equity did not join the defendant judgment debtor in the Underlying Action, the court, under the circumstances here, finds that the defendant is not a necessary party. Namely, Capital Equity does not request that the County Clerk enter a default judgment in this proceeding, as was the case in Matter of Dyno (260 AD2d at 696-697 [finding defendant in underlying action was necessary party in mandamus action]), but rather, it requests an order that the County Clerk process the application in the 2019 action in the same manner as she would any other application for a sum certain default judgment. Under CPLR 3215, it is the plaintiff who choses whether to seek a sum certain default judgment from the clerk or from the court, not the defaulting defendant. Moreover, it is hard to see how the defendant in the Underlying Action would be "inequitably affected" by a determination that the default application may be made to the Clerk, since both the Clerk and the Court must apply the same standard for any sum certain application - - that is, a sum certain default application made to the Court, like one made to the Clerk, does not require an inquest (see Van Sharma v Chamberlain, 109 AD3d 1094, 1095 [4th Dept 2013]; Grinshpun v Borokhovich, 100 AD3d 551, 552 [1st Dept 2012], lv denied 21 NY3d 857 [2013]; Select Papers v College Promotions Corp., 241 AD2d 675, 676 [3d Dept 1997], lv dismissed 91 NY2d 956 [1998]). The court thus concludes that the defendant in the underlying action is not a necessary party in this proceeding to compel the County Clerk to carry out her ministerial duties (see Djoganopoulos v Polkes, 95 AD3d 933, 934 [2d Dept 2012]; Matter of Gaffney v Goldrick, 250 AD2d 849, 849 [2d Dept 1998]; Clemente v Piscitella, 197 AD2d 765, 767 [3d Dept 1993]; Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 7804:10; cf. Matter of Feder v Town of Islip Zoning Bd. of Appeals, 114 AD3d 782, 784-785 [2d Dept 2014] [persons who were granted a certificate of compliance by town department of planning were necessary parties in proceeding to revoke the certificate of compliance]; Matter of Faraldo v Tomei, 49 [*8]AD3d 734, 735 [2d Dept 2008]).[FN7]

The court emphasizes that it is not directing the County Clerk to grant the application and enter judgment, as Capital Equity only requests that the County Clerk process the application, and the court has made no determination that Capital Equity's default judgment application papers satisfy the requirements of CPLR 3215 or 5014. Since the court is only directing the County Clerk to consider the application and is not making a finding regarding whether Capital Equity has provided the "requisite proof" required (CPLR 3215 [a], [f]), the relief granted here does not intrude on any discretionary function the County Clerk may have in considering the adequacy of the plaintiff's default judgment application (Klosterman, 61 NY2d at 539-540). The relief granted here is thus akin to that granted in the line of cases which granted writs requiring judges to decide motions (see e.g., Matter of Liang, 132 AD3d at 765-766; Matter of Weinstein, 60 NY2d at 627) and is not similar to the relief found to be improper in Matter of Dyno v Rose (260 AD2d 694), which [3d Dept 1999]) is readily distinguishable. In Matter of Dyno, the Third Department found that mandamus did not lie to compel a Justice to enter a default judgment because the determination whether the factual allegations in the complaint and/or the affidavit of facts were sufficient to state all of the necessary elements for a prima facie case of nuisance involved a discretionary judicial determination (id. at 698).

In conclusion, it is hereby ORDERED and ADJUDGED that petitioner's request for mandamus to compel, pursuant to CPLR 7803 (1), is granted, and the County Clerk is directed to process Capital Equity's default judgment application in the Underlying Acton as it would any other default judgment application for a sum certain.

This constitutes the decision, order, and judgment of the court.

E N T E R :

s/

Hon. Debra Silber, J.S.C. Footnotes

Footnote 1:By supplying a copy of the transcript of the judgment filed with the County Clerk, Capital Equity demonstrated that it had done what is required to have a Civil Court judgment docketed by the County Clerk (see CPLR 5018 [a]).

Footnote 2:The County Clerk's decision not to process renewal judgment applications without judicial intervention appears to be the result of a relatively recent policy change by the County Clerk, as Capital Equity has submitted copies of default judgments approved by the County Clerk in other renewal judgment actions brought by Capital Equity.

Footnote 3:CPLR 3215 (a), provides: "When a defendant has failed to appear, plead, or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him. If the plaintiff's claim is for a sum certain or for a sum which can by computation be made certain, application may be made to the clerk within one year after the default. The clerk, upon submission of the requisite proof, shall enter judgment for the amount demanded in the complaint or stated in the notice served pursuant to subdivision (b) of rule 305, plus costs and interest. Upon entering a judgment against less than all defendants, the clerk shall also enter an order severing the action as to them. When a plaintiff has failed to proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the defendant may make application to the clerk within one year after the default and the clerk, upon submission of the requisite proof, shall enter judgment for costs. Where the case is not one in which the clerk can enter judgment, the plaintiff shall apply to the court for judgment."

Footnote 4:The Court of Appeals in Matter of Brusca noted that the default provisions of CPLR 3215 are generally applicable to all defaults but found that they are inapplicable to a default in a RPAPL article 7 summary proceeding because of the specific default requirements that apply to summary proceedings (Matter of Brusca, 84 NY2d at 681; RPAPL 732 [3]). Here, the court is not aware of, and the County Clerk has not identified, any provision that would render CPLR 3215 inapplicable to a CPLR 5014 action for a renewal judgment.

Footnote 5:In each of the cases at issue in Lull, Jones Morrison LLP, and Premier Capital, LLC, the defendant appeared in the action, and the courts' references to the requirement to provide evidentiary proof of nonpayment simply refers to a plaintiff's burden on the summary judgment motions at issue in those cases.

Footnote 6:As is relevant here, CPLR 3213 provides that, "When an action is based upon an instrument for the payment of money only or upon any judgment, the plaintiff may serve with the summons a notice of motion for summary judgment and the supporting papers in lieu of a complaint" (emphasis added).

Footnote 7:Cases such as Matter of Faraldo do not apply to the facts here since those cases largely rest on the requirements of CPLR 7804 (i), which provides that, in proceedings brought against "a justice, judge, referee or judicial hearing officer appointed by a court," the other parties to the proceeding must be served and made parties to the CPLR article 78 proceeding. As the County Clerk is not "a justice, judge, referee or judicial hearing officer," CPLR 7804 (i) is inapplicable here.