Association for the Preservation of Freedom of Choice, Inc. v. Shapiro

14 A.D.2d 800, 220 N.Y.S.2d 696, 1961 N.Y. App. Div. LEXIS 8389

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 1961
• Status: Published

Opinion

Since the filing of this amended petition does not prejudice any substantial right of the respondent, the court disregards petitioner’s irregularity in filing it without prior leave and deems it to be filed (Civ. Prac. Act, §§ 105, 244, 1306). In view of the filing of such amended petition, however, this court presently cannot take any action on the Court of Appeals’ remittitur, for the remittitur is based on the original petition which has now been superseded by the amended petition. It would also appear that respondent, who has since been elected to the office of County Judge of Queens County, is now functus officio as a Supreme Court Justice. Accordingly, respondent is directed, within 30 days after entry of the order hereon, either to file and serve his answer to the amended petition, in accordance with section 1291 of the Civil Practice Act, or to make such motion addressed to the amended petition as he deems appropriate under section 1293 of the Civil Practice Act. Pending such answer or motion, action on the remittitur must necessarily be held in abeyance. Nolan, P. J., Beldock, Ughetta, Christ and Pette, JJ., concur.