Kocur v. Erie County Water Authority

292 A.D.2d 858, 739 N.Y.S.2d 515

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 2002
• Status: Published

Opinion

Appeal from a judgment (denominated order) of Supreme Court, Erie County (Sedita, Jr., J.), entered August 7, 2001, which granted respondents’ motion to dismiss the CPLR article 78 petition seeking to compel payment under Civil Service Law §75.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied, the petition is reinstated and the matter is remitted to Supreme Court for further proceedings on the petition.

Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to compel respondents to pay him the tenured civil service wages to which he is allegedly entitled under Civil Service Law § 75. We agree with petitioner that Supreme Court erred in granting respondents’ motion to dismiss the petition for lack of verification. Respondents’ failure to object with due diligence to the lack of verification operates as a waiver of that defect (see, CPLR 3022; Matter of Giambra v Commissioner of Motor Vehs. of State of N.Y., 46 NY2d 743, 745; Ligotti v Wilson, 287 AD2d 550). The objection to the lack of verification by respondents’ counsel for the first time at oral argument on petitioner’s motion for payment of salary pending the section 75 hearing does not constitute the requisite due diligence. Consequently, we reverse the judgment, deny the motion, reinstate the petition and remit the matter to Supreme Court for further proceedings on the petition. Present — Pigott, Jr., P.J., Pine, Hayes, Hurlbutt and Lawton, JJ.