Marlow v. Kobliner

Appellate Division of the Supreme Court of New York

Marlow v. Kobliner

78 A.D.2d 874, 433 N.Y.S.2d 179, 1980 N.Y. App. Div. LEXIS 13591

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

DecidedNovember 10, 1980

StatusPublished

Cited by7 cases

This text of 78 A.D.2d 874 (Marlow v. Kobliner) 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

Marlow v. Kobliner, 78 A.D.2d 874, 433 N.Y.S.2d 179, 1980 N.Y. App. Div. LEXIS 13591 (N.Y. Ct. App. 1980).

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Opinion

In a proceeding pursuant to CPLR article 78 to compel the examiner in charge of physical and medical examinations of the Board of Examiners of the New York City Board of Education to turn over to petitioner’s named physician copies of all medical records “used to deny petitioner” a teacher’s license, the appeal, as limited by appellant’s brief, is from so much of an order and judgment (one paper) of the Supreme Court, Kings County, dated May 4,1979, as granted the petition and denied appellant’s cross motion to dismiss. Order and judgment modified, on the law, by deleting therefrom the provision that the materials be served “upon petitioner” and substituting therefor a provision that the materials demanded shall be served upon the physician named in petitioner’s application. As so modified, order and judgment affirmed insofar as appealed from, without costs or disbursements. As appellant himself notes, he granted permission to petitioner’s physician to examine the subject records. That permission, however, also imposed the burden upon the physician of examining the records only at appellant’s offices. That was unreasonable. Since appellant, by his permission, implicitly concedes that petitioner’s physician is entitled to examine the records, which is the only relief demanded, there is no reason to deny the application. We have modified the order and judgment to accord with the demand in the petition. Furthermore, the concession makes clear, as do all the papers before the court, that no issue of fact exists and that an answer could add nothing. Indeed, at oral argument, appellant’s counsel indicated that, rather than raising any factual claim, he would assert in his answer the same ground for denying the petition as he had urged for dismissal, to wit, the inapplicability of the statute under which petitioner has proceeded (Public Health Law, § 17). In these circumstances, an answer pursuant to CPLR 7804 (subd [f]) is not required (see Matter of Vermont Marble Co. v Office of Gen. Servs., 42 AD2d 468; accord Matter of De Vito o Nyquist, 56 AD2d 159, affd 43 NY2d 681; Siegel, New York Practice, § 567, p 796). Hopkins, J. P., Damiani, Titone and O’Connor, JJ., concur.

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In a proceeding pursuant to CPLR article 78 to compel the examiner in charge of physical and medical examinations of the Board of Examiners of the New York City Board of Education to turn over to petitioner’s named physician copies of all medical records “used to deny petitioner” a teacher’s license, the appeal, as limited by appellant’s brief, is from so much of an order and judgment (one paper) of the Supreme Court, Kings County, dated May 4,1979, as granted the petition and denied appellant’s cross motion to dismiss. Order and judgment modified, on the law, by deleting therefrom the provision that the materials be served “upon petitioner” and substituting therefor a provision that the materials demanded shall be served upon the physician named in petitioner’s application. As so modified, order and judgment affirmed insofar as appealed from, without costs or disbursements. As appellant himself notes, he granted permission to petitioner’s physician to examine the subject records. That permission, however, also imposed the burden upon the physician of examining the records only at appellant’s offices. That was unreasonable. Since appellant, by his permission, implicitly concedes that petitioner’s physician is entitled to examine the records, which is the only relief demanded, there is no reason to deny the application. We have modified the order and judgment to accord with the demand in the petition. Furthermore, the concession makes clear, as do all the papers before the court, that no issue of fact exists and that an answer could add nothing. Indeed, at oral argument, appellant’s counsel indicated that, rather than raising any factual claim, he would assert in his answer the same ground for denying the petition as he had urged for dismissal, to wit, the inapplicability of the statute under which petitioner has proceeded (Public Health Law, § 17). In these circumstances, an answer pursuant to CPLR 7804 (subd [f]) is not required (see Matter of Vermont Marble Co. v Office of Gen. Servs., 42 AD2d 468; accord Matter of De Vito o Nyquist, 56 AD2d 159, affd 43 NY2d 681; Siegel, New York Practice, § 567, p 796). Hopkins, J. P., Damiani, Titone and O’Connor, JJ., concur.

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Bluebook (online)

78 A.D.2d 874, 433 N.Y.S.2d 179, 1980 N.Y. App. Div. LEXIS 13591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marlow-v-kobliner-nyappdiv-1980.

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