| Matter of Sital v Fischer |
| 2010 NY Slip Op 06327 [76 AD3d 723] |
| August 5, 2010 |
| Appellate Division, Third Department |
| In the Matter of Frans Sital, Appellant, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondents.
Appeal (1) from a judgment of the Supreme Court (Devine, J.), entered August 28, 2009 inAlbany 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 inAlbany County, which, among other things, denied petitioner's motion for reargument.
Petitioner commenced this CPLR article 78 proceeding to challenge a determination ofrespondent Commissioner of Correctional Services finding him guilty of violating certain prisondisciplinary rules, as well as to challenge the denial of his October 2, 2008 grievance by theCentral Office Review Committee. Supreme Court granted respondents' pre-answer motion todismiss the petition on the ground that petitioner failed to timely serve respondents and theAttorney General in accordance with the order to show cause. Petitioner now appeals.[FN*]
Respondents now withdraw their objection to the timeliness of service based upon thediscovery of a notarized affidavit of service indicating that petitioner, indeed, served his papersin [*2]accordance with the order to show cause. Accordingly, andinasmuch as respondents have not been given an opportunity to submit an answer, we find itappropriate to remit the matter to Supreme Court (see Matter of Abreu v Hogan, 72 AD3d 1143, 1144 [2010]; Matter of Dolan v Goord, 24 AD3d1121, 1122 [2005]).
Peters, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, motion denied and matter remitted to the Supreme Court topermit 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.
Footnote *: Inasmuch as no appeal may betaken from an order denying a motion for reargument, petitioner's appeal as to the order enteredNovember 9, 2009 must be dismissed (see Matter of Hill v Goord, 275 AD2d 492, 493[2000]).