La Rocque v. Farnan

51 A.D.2d 1057, 381 N.Y.S.2d 530, 1976 N.Y. App. Div. LEXIS 11880

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 29, 1976
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to (1) review appellants’ denial of petitioner’s application for reinstatement to his position as an active police sergeant in the Glen Cove Police Department and (2) compel such reinstatement, the appeal is from a judgment of the Supreme Court, Nassau County, entered December 10, 1975, which, upon a decision denying appellants’ motion to dismiss the petition, inter alia, granted the relief sought in the petition. Judgment reversed, on the law, without costs or disbursements, and proceeding remanded to Special Term for further proceedings in accordance herewith. Appellants’ time to serve an answer is extended until 10 days after service upon them of the order to be made hereon, together with notice of entry thereof. No findings of fact were presented for review. Special Term denied appellants’ motion to dismiss and granted petitioner affirmative relief before appellants had an opportunity to serve their answer. In accordance with the provisions of CPLR 7804 (subd [f]), upon the denial of the appellants’ motion to dismiss, affirmative relief should not have been granted petitioner before permitting appellants to answer (see Matter of Barone v City of Dunkirk, 47 AD2d 592; Hawk Sales Co. v Dieteman, 42 AD2d 817; Mulonet v Lasky, 39 AD2d 922). Hopkins, Acting P. J., Cohalan, Damiani, Christ and Titone, JJ., concur.