Hawk Sales Co. v. Dieteman

Appellate Division of the Supreme Court of New York

Hawk Sales Co. v. Dieteman

42 A.D.2d 817, 345 N.Y.S.2d 784, 1973 N.Y. App. Div. LEXIS 3865

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 6, 1973

StatusPublished

Cited by3 cases

This text of 42 A.D.2d 817 (Hawk Sales Co. v. Dieteman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hawk Sales Co. v. Dieteman, 42 A.D.2d 817, 345 N.Y.S.2d 784, 1973 N.Y. App. Div. LEXIS 3865 (N.Y. Ct. App. 1973).

Pincite

Opinion

.— Judgment unanimously reversed on the law, without costs, and respondents’ cross motion to dismiss petition denied. Respondents’ time to answer petition [818]*818extended until 20 days after entry of the order to he made hereon. Memorandum: In this article 78 proceeding to annul a determination of respondents, Zoning Board of Appeals, Special Term, without passing on respondents’ cross motion to dismiss petition made on the ground that petitioner is not an aggrieved party, erroneously dismissed the petition on a ground not raised in the cross motion. Petitioner sought to annul respondents’ determination that the use of a mobile home as an office violated an ordinance prohibiting the use of a trailer for living or sleeping purposes and also sought a court direction requiring respondents to issue a permit to petitioner to connect land occupied by it to the village water and sewer systems. Special Term dismissed the petition on the ground that respondents lack power to grant a permit for connecting with water and sewer systems, although the petition also clearly stated a case for annulling respondents’ determination. A respondent may raise an objection in point of law in a cross motion to dismiss, and the court has no power, if the motion is denied, to determine the case on grounds not raised in the cross motion without first permitting the respondent to serve his answer (CPLR 7804, subd. [f]). The proper procedure is to consider only the cross motion and, if it is denied, to delay any other determinations until after an answer has been served. (Matter of Kesterson v. City of Buffalo, 40 A D 2d 575; Mulonet v. Lasky, 39 A D 2d 922; Garner v. City of Buffalo, 33 A D 2d 1098; Matter of Sassett v. Barnes, 11 A D 2d 1089.) Finding that petitioner is an aggrieved party with standing to institute the proceeding we deny respondents’ cross motion to dismiss the petition and we extend respondents’ time to answer the petition. (Appeal from judgment of Cattaraugus Special Term in article 78 proceeding.) Present — Del Vecchio, J. P., Marsh, Moule, Simons and Henry, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

.— Judgment unanimously reversed on the law, without costs, and respondents’ cross motion to dismiss petition denied. Respondents’ time to answer petition [818]*818extended until 20 days after entry of the order to he made hereon. Memorandum: In this article 78 proceeding to annul a determination of respondents, Zoning Board of Appeals, Special Term, without passing on respondents’ cross motion to dismiss petition made on the ground that petitioner is not an aggrieved party, erroneously dismissed the petition on a ground not raised in the cross motion. Petitioner sought to annul respondents’ determination that the use of a mobile home as an office violated an ordinance prohibiting the use of a trailer for living or sleeping purposes and also sought a court direction requiring respondents to issue a permit to petitioner to connect land occupied by it to the village water and sewer systems. Special Term dismissed the petition on the ground that respondents lack power to grant a permit for connecting with water and sewer systems, although the petition also clearly stated a case for annulling respondents’ determination. A respondent may raise an objection in point of law in a cross motion to dismiss, and the court has no power, if the motion is denied, to determine the case on grounds not raised in the cross motion without first permitting the respondent to serve his answer (CPLR 7804, subd. [f]). The proper procedure is to consider only the cross motion and, if it is denied, to delay any other determinations until after an answer has been served. (Matter of Kesterson v. City of Buffalo, 40 A D 2d 575; Mulonet v. Lasky, 39 A D 2d 922; Garner v. City of Buffalo, 33 A D 2d 1098; Matter of Sassett v. Barnes, 11 A D 2d 1089.) Finding that petitioner is an aggrieved party with standing to institute the proceeding we deny respondents’ cross motion to dismiss the petition and we extend respondents’ time to answer the petition. (Appeal from judgment of Cattaraugus Special Term in article 78 proceeding.) Present — Del Vecchio, J. P., Marsh, Moule, Simons and Henry, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

42 A.D.2d 817, 345 N.Y.S.2d 784, 1973 N.Y. App. Div. LEXIS 3865, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawk-sales-co-v-dieteman-nyappdiv-1973.

Opinion

Related

Cite This Page — Counsel Stack