Desimone v. New York State Liquor Autority

12 A.D.2d 998, 211 N.Y.S.2d 481, 1961 N.Y. App. Div. LEXIS 12483

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

Opinion

Order unanimously reversed, without costs of this appeal to either party, and proceeding remitted to Special Term for further proceedings in accordance with the memorandum. Memorandum: After this proceeding had been transferred to this court, Special Term had no jurisdiction to “decertify” the proceeding or to take any other action (in relation to the matter certified) without permission of this court. We agree with Special Term that the present answer is insufficient (Civ. Prac. Act, § 1291). The proceeding must be remitted to Special Term, with permission to the State Liquor Authority to move, within 15 days from the date of the order of this court, to amend the answer. If no such motion is made, Special Term shall so notify this court. If made, Special Term shall examine the proposed answer and if it is deemed sufficient to raise issues for determination by this court under section 1297 of the Civil Practice Act the answer shall be transmitted to this court to become a part of the record on appeal under Justice Fisher’s order of transfer. If Special Term should find such proposed answer insufficient or inadequate, then it shall remit the matter to the State Liquor Authority for appropriate proceedings. (Appeal from order of Brie Special Term decertifying to Special Term a proceeding which had been certified to the Appellate Division for determination, striking out the answer and return and annulling the determination of the Liquor Authority which revoked petitioner’s license.) Present-—Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.