Matter of Bethelite Community Church Great Tomorrows Elementary School, v Department of Envtl. Protection of City of N.Y.

Matter of Bethelite Community Church, Great Tomorrows Elementary School v Department of Envtl. Protection of City of N.Y. 2007 NY Slip Op 04725 [8 NY3d 1001] June 7, 2007 Court of Appeals Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 1, 2007

[*1] In the Matter of Bethelite Community Church, Great Tomorrows Elementary School, Respondent,
v
Department of Environmental Protection of the City of New York et al., Appellants.

Decided June 7, 2007

Matter of Bethelite Community Church, Great Tomorrows Elementary School v Department of Envtl. Protection of City of N.Y., 27 AD3d 256, reversed.

APPEARANCES OF COUNSEL

Michael A. Cardozo, Corporation Counsel, New York City (Ronald E. Sternberg of counsel), for appellants.

Anthony C. Jones, New York City, for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the matter [*2]remitted to Supreme Court for further proceedings in accordance with this memorandum.

Petitioner is a religious corporation that operates a church and school in a building it occupies in Manhattan. Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination of the Department of Environmental Protection of the City of New York denying it a full exemption from water and sewer charges under chapter 696 of the New York Laws of 1887, as amended by chapter 893 of the Laws of 1980, and section 24-514 (e) of the Administrative Code of the City of New York, respectively.

Respondents do not now dispute the denial of their preanswer motion to dismiss the proceeding. They only challenge that Supreme Court proceeded to the merits without permitting them to submit an answer. Supreme Court erred in granting the petition without first affording respondents an opportunity to answer (see CLPR 7804 [f]; Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 102-104 [1984]). Accordingly, this case must be remitted to Supreme Court to allow respondents to submit an answer and for further proceedings on the pleadings.

Chief Judge Kaye and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.