Nunz v. De Cillis

3 A.D.2d 645, 158 N.Y.S.2d 111, 1956 N.Y. App. Div. LEXIS 3476

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 1956
• Status: Published

Opinion

— Order modified in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: We think that since the dismissal of the petition appears to have been made on technical grounds, such dismissal should be with the right to renew rather than upon the merits. The amended petition should, pursuant to section 1288 of the Civil Practice Act, contain a plain and concise statement of the material facts upon which the petitioner relies and should be verified. Certain inadequacies also appear in the respondent’s papers. We direct the respondent’s attention to the requirement of section 1291 of the Civil Practice Act that the transcript of the record of the proceedings annexed to the answer should be certified; also that respondent should serve and submit with the answer an affidavit showing sufficient evidentiary facts as shall entitle the respondent to a trial of any issue of fact. The hearing officer should render a decision containing his findings of fact (see Matter of Garry v. Kocialski, 286 App. Div. 314). Moreover, in preparation of a new petition consideration should be given as to whether or not this article 78 proceeding is one by way of mandamus to compel a further hearing before the commissioner or by certiorari to review the hearing already had. The order should be modified by striking out from the ordering paragraph the words “on the merits” and substituting therefor “with leave to renew by serving an amended petition” within 10 days after service of the order with notice of entry. All concur. (Appeal from an order of Erie Special Term, denying a motion by petitioner for reinstatement and back pay, and dismissing the petition.) Present—McCurn, P. J., Vaughan, Kimball, Williams and Bastow, JJ.