Oluwo v. Ruddy

—In an action, inter alia, to recover damages for libel, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Held, J.), dated June 2, 1992, which denied his petition for relief pursuant to CPLR article 78.

Ordered that the judgment is modified, on the law, by deleting the provision thereof denying the petition and substituting therefor a provision dismissing the petition; as so modified, the judgment is affirmed, with costs to the respondents.

The appellant commenced this libel action against the de*522fendant Francis M. Ruddy and shortly thereafter moved for a preliminary injunction. That motion was denied, as was a subsequent motion to reargue. The appellant then served what purported to be a petition for relief pursuant to CPLR article 78, bearing the same index number as the libel action and adding the New York State Insurance Department as a "defendant”.

The appellant’s service of a petition in the context of this plenary action was improper. A proceeding pursuant to CPLR article 78 is a separate special proceeding (see, CPLR 7804). Consequently, the petition must be dismissed. However, we note that the Supreme Court correctly found that the appellant failed to exhaust his administrative remedies. Bracken, J. P., Copertino, Altman and Friedmann, JJ., concur.