State v. Rockland County

74 A.D.2d 921, 426 N.Y.S.2d 83, 1980 N.Y. App. Div. LEXIS 10730

Opinion

In a proceeding pursuant to CPLR article 78 to compel respondent Rockland County to complete the acquisition of certain property, petitioner appeals from a judgment of the Supreme Court, Rockland County, dated July 23, 1979, which, upon respondents’ motion to dismiss the petition, dismissed the proceeding as untimely. Judgment reversed, on the law, without costs or disbursements, and motion to dismiss denied. Respondents’ time to answer is extended until 20 days after service upon them of the copy of the order to be made hereon, together with notice of entry thereof. The instant proceeding is not barred by the Statute of Limitations since it was commenced within four months of respondents’ refusal, upon the demand of petitioner, to perform their alleged duty (see CPLR 217). In the absence of statutory authority, the defense of laches (see Austin v Board of Higher Educ. of City of N. Y., 5 NY2d 430), may not be asserted against the petitioner State of New York (see Matter of Jamestown Lodge 1681 Loyal Order of Moose [Catherwood], 31 AD2d 981). Disposition of the proceeding on the merits must await joinder of issue. Mollen, P. J., Hopkins, Titone and Weinstein, JJ., concur.