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In the Matter of William J. v. Dale Artus

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


June 21, 2012

IN THE MATTER OF WILLIAM J. HAUGHEY, APPELLANT,
v.
DALE ARTUS, AS SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, RESPONDENT.

Appeal from a judgment of the Supreme Court (Richards, J.), entered July 26, 2010 in Clinton County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

MEMORANDUM AND ORDER

Calendar Date: May 9, 2012

Before: Peters, P.J., Rose, Spain, Kavanagh and Garry, JJ.

Petitioner commenced this CPLR article 78 proceeding seeking to challenge a determination of respondent finding him guilty, after a tier II disciplinary hearing, of violating the rule prohibiting unauthorized legal assistance. In lieu of answering, respondent sought to dismiss the proceeding on the basis of lack of timely service upon respondent and the Attorney General. Supreme Court granted the motion on that basis and dismissed the petition, prompting this appeal.

Significantly, respondent has now written to this Court withdrawing the objection to the timeliness of service based upon the discovery of a notarized affidavit of service demonstrating that service of the applicable papers had been properly accomplished in accordance with the order to show cause. As respondent has not been given an opportunity to submit an answer, we deem it appropriate to remit the matter to Supreme Court for further proceedings (see Matter of Sital v Fischer, 76 AD3d 723 [2010]).

Peters, P.J., Rose, Spain, Kavanagh and Garry, JJ., concur.

ORDERED that the judgment is reversed, on the law, without costs, motion denied, and matter remitted to the Supreme Court to permit respondent to serve an answer within 20 days of the date of this Court's decision.

ENTER:

Robert D. Mayberger Clerk of the Court

20120621

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