Wapnick v. Board of Regents

41 A.D.2d 795 | N.Y. App. Div. | 1973

Appeal from a judgment of the Supreme Court at Special Term, entered March 29, 1971 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination of the respondent board Upon the ground that the article 78 proceeding was not timely commenced. Special Term relied solely upon an alleged affidavit of service of a notice of revocation of petitioner’s license as a certified public accountant in reaching the conclusion that the proceeding was time-barred. This affidavit, however, was unsworn, and therefore amounted to no more than hearsay. Hence, there was no competent evidence upon which Special Term could conclude that the petitioner was served. We pass on no other issue. Judgment reversed, on the law and the facts, and motion denied, without costs. Herlihy, P. J., Staley, Jr., Sweeney and Main, JJ., concur; Cooke, J., concurs in a separate memorandum. Cooke, J. (concurring). I would remit the proceedings to Special Term to allow the parties to submit proof on the question as to when petitioner received notice of the determination of revocation.