Larkin v. County of Oneida

48 A.D.3d 1305, 849 N.Y.S.2d 922

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 2008
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order (denominated order and judgment) of the Supreme .Court, Oneida County [Samuel D. Hester, J.], entered May 25, 2007) to review a determination of respondents. The determination denied petitioner’s application for benefits pursuant to General Municipal Law § 207-c.

It is hereby ordered that the order so appealed from is unanimously vacated without costs and the matter is remitted to Supreme Court, Oneida County, for further proceedings in accordance with the following Memorandum: Petitioner commenced this CPLR article 78 proceeding challenging respondents’ determination, following a hearing before a hearing officer, denying her application for benefits pursuant to General Municipal Law § 207-c. Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804 (g). “Repondent[s]’ determination was not ‘made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law’ ” (.Matter of Ridge Rd. Fire Dist. v Schiano, 41 AD3d 1219, 1220 [2007], quoting CPLR 7803 [4]) but, rather, the determination followed a hearing conducted pursuant to procedures instituted by respondents. “Thus, the proceeding should not have been transferred to this Court pursuant to CPLR 7804 (g)” {id.). We therefore vacate the order transferring the proceeding and remit the matter to Supreme Court for disposition on the merits {see id.; Matter of Pierino v Brown, 281 AD2d 960 [2001]). Present—Gorski, J.P., Martoche, Smith, Centra and Green, JJ.