Tempio v. Erie County Health Department

Apr 29, 2005
Versions:17 A.D.3d 1161
793 N.Y.S.2d 848
2005 N.Y. App. Div. LEXIS 4643

Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered March 10, 2004 in a proceeding pursuant to CPLR article 78. The order denied respondent‘s “cross petition” to dismiss the petition and directed respondent to file and serve an answer within 30 days.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Respondent appeals from an order denying its “cross petition” seeking dismissal of the CPLR article 78 petition and affording respondent 30 days in which to file and serve an answer. Although no appeal lies as of right from an intermediate order in such a proceeding (see CPLR 5701 [b] [1]), we treat the notice of appeal as an application for permission to appeal and grant the application (see CPLR 5701 [c]; Matter of Conde v Aiello, 204 AD2d 1029 [1994]). We nevertheless conclude, however, that Supreme Court properly denied the “cross petition” at this juncture of the litigation and afforded respondent the opportunity to file and serve an answer. Present—Hurlbutt, J.P., Scudder, Gorski, Pine and Lawton, JJ.