Matter of Kairis v. Smith

129 A.D.3d 1426, 10 N.Y.S.3d 909

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 25, 2015
• Docket: 520023
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Nichols, J.), entered August 26, 2014 in Columbia County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding to challenge a determination of respondent finding him guilty of violating certain prison disciplinary rules. Supreme Court granted respondent’s pre-answer motion to dismiss the petition on the ground that petitioner failed to timely serve respondent in accordance with the order to show cause. Petitioner now appeals.

We reverse. The record reveals, and respondent now concedes, that petitioner had served his papers in accordance with the order to show cause. Inasmuch as respondent has not had an opportunity to submit an answer, we deem it appropriate to remit the matter to Supreme Court for further proceedings (see Matter of Hammond v LaValley, 117 AD3d 1266 [2014]; Matter of Haughey v Artus, 96 AD3d 1242, 1242-1243 [2012]).

Garry, J.P., Egan Jr., Lynch and Clark, JJ., concur.

Ordered that the judgment is reversed, on the law, without costs, motion denied, and matter remitted to the Supreme Court to permit respondent to serve an answer within 20 days of the date of this Court’s decision.