You are here: / / ALTHOUGH THE PRE-ANSWER MOTION TO DISMISS THE ARTICLE 78 PETITION WAS PROPERLY...
,

ALTHOUGH THE PRE-ANSWER MOTION TO DISMISS THE ARTICLE 78 PETITION WAS PROPERLY DENIED, THE COURT SHOULD NOT HAVE GRANTED THE PETITION WITHOUT AFFORDING THE RESPONDENTS THE OPPORTUNITY TO ANSWER IT (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court. determined the granting of the Article 78 petition after denying a pre-answer motion to dismiss was not proper:

In a CPLR article 78 proceeding, once such a “motion is denied, the court shall permit respondent to answer, upon such terms as may be just” (CPLR 7804 [f]). Here, in denying the motion, the court essentially treated respondents’ motion as one for summary judgment, searched the record, and granted summary judgment against respondents. It is well settled, however, that “if the court intends to treat the motion as one for summary judgment, it must give adequate notice to the parties that it so intends” … , and the court gave no such notice here. Additionally, only where “the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer” should a court grant the petition without permitting respondents to answer … . Mintz v City of Rochester, 2021 NY Slip Op 07389, Fourth Dept 12-23-21

 

You might also like
THE PROSECUTOR VIOLATED THE CRIMINAL PROCEDURE LAW BY REFUSING TO INFORM THE GRAND JURY THE DEFENDANT REQUESTED THE TESTIMONY OF TWO WITNESSES; HOWEVER THE PROSECUTORIAL MISCONDUCT DID NOT WARRANT DISMISSAL OF TWO COUNTS OF THE INDICTMENT; COUNTY COURT REVERSED (FOURTH DEPT). ​
IN THIS DRAM SHOP ACT CASE, DEFENDANT BAR DID NOT DEMONSTRATE DEFENDANT DRIVER WAS NOT VISIBLY INTOXICATED WHEN SERVED AND THEREFORE DID NOT MEET ITS INITIAL BURDEN FOR ITS SUMMARY JUDGMENT MOTION; A TWO-JUSTICE DISSENT ARGUED DEFENDANT BAR MET ITS INITIAL BURDEN, THUS SHIFITNG THE BURDEN TO THE PLANTIFF (FOURTH DEPT).
DEFENSE COUNSEL PROVIDED DEFENDANT WITH ERRONEOUS INFORMATION ABOUT THE LENGTH OF HIS SENTENCE SHOULD HE BE CONVICTED AFTER TRIAL AND ERRONEOUSLY TOLD THE DEFENDANT HIS PLEA TO SEX TRAFFICKING WOULD NOT MAKE HIM SUBJECT TO THE SEX OFFENDER REGISTRATION ACT (SORA), DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL. CONVICTION BY GUILTY PLEA REVERSED (FOURTH DEPT).
Insufficient Evidence Defendant Shared the Intent of the Seller of Heroin—Conviction Under an “Acting in Concert” or “Accomplice” Theory Reversed
THE JUDGE SHOULD HAVE ALLOWED DEFENDANT TO EXPLAIN HIS CLAIM THAT HE WAS RECEIVING INEFFECTIVE ASSISTANCE OF COUNSEL AND HIS REQUEST FOR NEW COUNSEL, PLEA VACATED (FOURTH DEPT).
INVESTIGATING A MALFUNCTION CONSTITUTES COVERED REPAIR UNDER LABOR LAW 240(1).
Statement by Reporter About a Judicial Proceeding Entitled to Absolute Privilege
THE FACT THAT THE CHILD LIVED WITH THE GRANDMOTHER FOR FOUR YEARS WAS AN “EXTRAORDINARY CIRCUMSTANCE” WHICH AFFORDED GRANDMOTHER STANDING TO SEEK CUSTODY (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALTHOUGH THE MAJORITY AFFIRMED DEFENDANT’S CONVICTION, THE TWO DISSENTERS... PLAINTIFF’S SON SUFFERED A BROKEN JAW IN A COLLISION WITH ANOTHER STUDENT...