Sital v. Fischer

76 A.D.2d 723, 905 N.Y.S.2d 529

Opinion

Appeal (1) from a judgment of the Supreme Court (Devine, J.), entered August 28, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition, and (2) from an order of said court, entered November 9, 2009 in Albany County, which, among other things, denied petitioner’s motion for reargument.

Petitioner commenced this CPLR article 78 proceeding to challenge a determination of respondent Commissioner of Correctional Services finding him guilty of violating certain prison disciplinary rules, as well as to challenge the denial of his October 2, 2008 grievance by the Central Office Review Committee. Supreme Court granted respondents’ pre-answer motion to dismiss the petition on the ground that petitioner failed to timely serve respondents and the Attorney General in accordance with the ordér to show cause. Petitioner now appeals.

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Respondents now withdraw their objection to the timeliness of service based upon the discovery of a notarized affidavit of service indicating that petitioner, indeed, served his papers in accordance with the order to show cause. Accordingly, and inasmuch as respondents have not been given an opportunity to submit an answer, we find it appropriate to remit the matter to Supreme Court (see Matter of Abreu v Hogan, 72 AD3d 1143, 1144 [2010]; Matter of Dolan v Goord, 24 AD3d 1121, 1122 [2005]).

Peters, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, motion denied and matter remitted to thé Supreme Court to permit respondents to serve an answer within 15 days of the date of this Court’s decision.

Ordered that the appeal from the order is dismissed, without costs.

Inasmuch as no appeal may be taken from an order denying a motion for reargument, petitioner’s appeal as to the order entered November 9, 2009 must be dismissed (see Matter of Hill v Goord, 275 AD2d 492, 493 [2000]).