Amato v. Town of Babylon

Appellate Division of the Supreme Court of New York

Amato v. Town of Babylon

116 A.D.2d 572, 497 N.Y.S.2d 428, 1986 N.Y. App. Div. LEXIS 51423

Appellate Division of the Supreme Court of the State of New York·Decided January 13, 1986·Published

Opinion

In a proceeding pursuant to CPLR article 78, inter alia, to compel appellants to reinstate petitioner to his position as Housing Inspector/Building Inspector, the appeal (by permission) is from an order of the Supreme Court, Suffolk County (Morrison, J.), dated May 25, 1984, which denied appellants’ motion to dismiss the proceeding.

Order affirmed, without costs or disbursements. Appellants’ time to serve an answer is extended until 15 days after service upon them of a copy of the order to be made hereon, with notice of entry.

We agree with Special Term that: "The fact that petitioner has joined a prayer for relief which is conditional in nature and may require a subsequent referral for hearing does not warrant dismissal of his claim without a review on the merits”. (See, Matter of Haines v Flacke, 104 AD2d 26.) Mangano, J. P., Rubin, Eiber and Kooper, JJ., concur.

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In a proceeding pursuant to CPLR article 78, inter alia, to compel appellants to reinstate petitioner to his position as Housing Inspector/Building Inspector, the appeal (by permission) is from an order of the Supreme Court, Suffolk County (Morrison, J.), dated May 25, 1984, which denied appellants’ motion to dismiss the proceeding.

Order affirmed, without costs or disbursements. Appellants’ time to serve an answer is extended until 15 days after service upon them of a copy of the order to be made hereon, with notice of entry.

We agree with Special Term that: "The fact that petitioner has joined a prayer for relief which is conditional in nature and may require a subsequent referral for hearing does not warrant dismissal of his claim without a review on the merits”. (See, Matter of Haines v Flacke, 104 AD2d 26.) Mangano, J. P., Rubin, Eiber and Kooper, JJ., concur.

Amato v. Town of Babylon, 116 A.D.2d 572, 497 N.Y.S.2d 428, 1986 N.Y. App. Div. LEXIS 51423 (N.Y. Ct. App. 1986).

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Opinion

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