Matter of Allison v. New York State Dept

Full title: In the Matter of RENIA ALLISON et al., Appellants, v. NEW YORK STATE…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 14, 1979

73 A.D.2d 824 (N.Y. App. Div. 1979)

Opinion

December 14, 1979

Appeal from the Cayuga Supreme Court.

Present — Cardamone, J.P., Hancock, Jr., Schnepp, Callahan and Moule, JJ.

Judgment unanimously vacated, without costs. Memorandum: Special Term erred in denying petitioners' application for an order to show cause as without merit and dismissing the petition. An order to show cause is simply a substitute for a notice of motion as a device for bringing on a special proceeding. The merits of the petition are not reached in granting or denying the order (see 2 Carmody-Wait 2d, N.Y. Prac, § 8:43, p 73; Siegel, New York Practice, § 248).