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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

 

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