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Sital v. Fischer

State of New York Supreme Court, Appellate Division Third Judicial Department


August 5, 2010

IN THE MATTER OF FRANS SITAL, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONAL SERVICES, ET AL., RESPONDENTS.

MEMORANDUM AND ORDER

Calendar Date: June 9, 2010

Before: Peters, J.P., Lahtinen, Stein and McCarthy, JJ.

Appeal (1) from a judgment of the Supreme Court (Devine, J.), entered August 28, 2009 in Albany 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 in Albany County, which, among other things, denied petitioner's motion for reargument.

Petitioner commenced this CPLR article 78 proceeding to challenge a determination of respondent Commissioner of Correctional Services finding him guilty of violating certain prison disciplinary rules, as well as to challenge the denial of his October 2, 2008 grievance by the Central Office Review Committee. Supreme Court granted respondents' preanswer motion to dismiss the petition on the ground that petitioner failed to timely serve respondents and the Attorney General in accordance with the order to show cause. Petitioner now appeals.*fn1

Respondents now withdraw their objection to the timeliness of service based upon the discovery of a notarized affidavit of service indicating that petitioner, indeed, served his papers in accordance with the order to show cause. Accordingly, and inasmuch as respondents have not been given an opportunity to submit an answer, we find it appropriate to remit the matter to Supreme Court (see Matter of Abreu v Hogan, 72 AD3d 1143, 1144 [2010]; Matter of Dolan v Goord, 24 AD3d 1121, 1122 [2005]).

Peters, J.P., Lahtinen, Stein and McCarthy, JJ., concur.

ORDERED that the judgment is reversed, on the law, without costs, motion denied and matter remitted to the Supreme Court to permit 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.


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