Pokoik v. Department of Health Services of County of Suffolk

Appellate Division of the Supreme Court of New York

Pokoik v. Department of Health Services of County of Suffolk

119 A.D.2d 579, 500 N.Y.S.2d 746, 1986 N.Y. App. Div. LEXIS 55507

Appellate Division of the Supreme Court of the State of New York·Decided April 7, 1986·Published·Cited by 4 cases

Opinion

— In a proceeding pursuant to CPLR article 78 to compel the respondents to comply with Public Health Law § 1340 (2) (a), the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), dated June 10, 1985, which granted the respondents’ separate motions and dismissed the proceeding.

Judgment reversed, with one bill of costs, motion denied, and proceeding reinstated. The respondents’ time to answer the petition is extended until 20 days after service upon them of a copy of the order to be made hereon, with notice of entry.

In dismissing the proceeding, Special Term mischaracterized it as one in the nature of mandamus to review rather than mandamus to compel. Special Term dismissed for lack of a final determination, concluding that the proceeding was premature. However, a proceeding pursuant to CPLR article 78 sounding in mandamus to compel may lie in the absence of a final determination (see, Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 96). We conclude that if the petitioner proves the allegations in his petition he will be entitled to relief by way of mandamus to compel pursuant to Public Health Law §§ 13, 1340 (2) (a). Mollen, P. J., Rubin, Fiber and Kooper, JJ., concur.

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— In a proceeding pursuant to CPLR article 78 to compel the respondents to comply with Public Health Law § 1340 (2) (a), the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), dated June 10, 1985, which granted the respondents’ separate motions and dismissed the proceeding.

Judgment reversed, with one bill of costs, motion denied, and proceeding reinstated. The respondents’ time to answer the petition is extended until 20 days after service upon them of a copy of the order to be made hereon, with notice of entry.

In dismissing the proceeding, Special Term mischaracterized it as one in the nature of mandamus to review rather than mandamus to compel. Special Term dismissed for lack of a final determination, concluding that the proceeding was premature. However, a proceeding pursuant to CPLR article 78 sounding in mandamus to compel may lie in the absence of a final determination (see, Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 96). We conclude that if the petitioner proves the allegations in his petition he will be entitled to relief by way of mandamus to compel pursuant to Public Health Law §§ 13, 1340 (2) (a). Mollen, P. J., Rubin, Fiber and Kooper, JJ., concur.

Pokoik v. Department of Health Services of County of Suffolk, 119 A.D.2d 579, 500 N.Y.S.2d 746, 1986 N.Y. App. Div. LEXIS 55507 (N.Y. Ct. App. 1986).

Pincite

119 A.D.2d 579 (Pokoik v. Department of Health Services of County of Suffolk) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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