SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
November 25, 1969
IN THE MATTER OF HERBERT A. POSNER ET AL., RESPONDENTS-APPELLANTS,
NELSON A. ROCKEFELLER, AS GOVERNOR OF THE STATE OF NEW YORK, ET AL., APPELLANTS-RESPONDENTS
60 Misc. 2d 597.
Concur -- Capozzoli, J. P., Tilzer, McGivern, Markewich and Nunez, JJ.
The order appealed from flies in the face of statute. Venue in this proceeding lies only in Albany County as to respondent-appellant Comptroller (CPLR 506, subd. [b], par. 2), and it must, therefore, be transferred. Further, the action taken by Special Term in dispensing with an answer and deciding on the merits was premature. Denial of the timely motion to dismiss should have been accompanied by permission to answer (CPLR 7804, subd. [f]), and such opportunity must be afforded respondents. In this posture of the matter, the other issues tendered are, of course, not reached.
Order and judgment entered October 9, 1969, unanimously reversed and vacated on the law, without costs and without disbursements, and the motion to change venue granted, and the proceeding remanded to Special Term, Albany County, for further proceedings with permission to respondents-appellants-respondents to interpose an answer to the petition within 10 days from the date of publication of this decision.
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