Matter of Kairis v Smith

Matter of Kairis v Smith 2015 NY Slip Op 05554 Decided on June 25, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: June 25, 2015
520023

[*1]In the Matter of PAUL KAIRIS, Appellant,

v

JOSEPH T. SMITH, as Superintendent of Shawangunk Correctional Facility, Respondent.

Calendar Date: May 5, 2015
Before: Garry, J.P., Egan Jr., Lynch and Clark, JJ.

Paul Kairis, Wallkill, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Nichols, J.), entered August 26, 2014 in Columbia County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner commenced this CPLR article 78 proceeding to challenge a determination of respondent finding him guilty of violating certain prison disciplinary rules. Supreme Court granted respondent's pre-answer motion to dismiss the petition on the ground that petitioner failed to timely serve respondent in accordance with the order to show cause. Petitioner now appeals.

We reverse. The record reveals, and respondent now concedes, that petitioner had served his papers in accordance

with the order to show cause. Inasmuch as respondent has not had an opportunity to submit an answer, we deem it appropriate to remit the matter to Supreme Court for further proceedings (see Matter of Hammond v LaValley, 117 AD3d 1266 [2014]; Matter of Haughey v Artus, 96 AD3d 1242, 1242-1243 [2012]).

Garry, J.P., Egan Jr., Lynch and Clark, 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.