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Matter of Posner v. Rockefeller

Appellate Division of the Supreme Court of New York, First Department
Nov 25, 1969
33 A.D.2d 683 (N.Y. App. Div. 1969)

Summary

In Matter of Posner v. Rockefeller (33 A.D.2d 683 [1st Dept 1969], affd 25 N.Y.2d 720), the action against the Governor and others was transferred to Albany County only because the State Comptroller was a party defendant and any action against that official is required, under CPLR 506 (b) (2), to be commenced in that County.

Summary of this case from Silver v. Pataki

Opinion

November 25, 1969


Order and judgment entered October 9, 1969, unanimously reversed and vacated on the law, without costs and without disbursements, and the motion to change venue granted, and the proceeding remanded to Special Term, Albany County, for further proceedings with permission to respondents-appellants-respondents to interpose an answer to the petition within 10 days from the date of publication of this decision. The order appealed from flies in the face of statute. Venue in this proceeding lies only in Albany County as to respondent-appellant Comptroller (CPLR 506, subd. [b], par. 2), and it must, therefore, be transferred. Further, the action taken by Special Term in dispensing with an answer and deciding on the merits was premature. Denial of the timely motion to dismiss should have been accompanied by permission to answer (CPLR 7804, subd. [f]), and such opportunity must be afforded respondents. In this posture of the matter, the other issues tendered are, of course, not reached.

Concur — Capozzoli, J.P., Tilzer, McGivern, Markewich and Nunez, JJ. [ 60 Misc.2d 597.]


Summaries of

Matter of Posner v. Rockefeller

Appellate Division of the Supreme Court of New York, First Department
Nov 25, 1969
33 A.D.2d 683 (N.Y. App. Div. 1969)

In Matter of Posner v. Rockefeller (33 A.D.2d 683 [1st Dept 1969], affd 25 N.Y.2d 720), the action against the Governor and others was transferred to Albany County only because the State Comptroller was a party defendant and any action against that official is required, under CPLR 506 (b) (2), to be commenced in that County.

Summary of this case from Silver v. Pataki
Case details for

Matter of Posner v. Rockefeller

Case Details

Full title:In the Matter of HERBERT A. POSNER et al., Respondents-Appellants, v…

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

Date published: Nov 25, 1969

Citations

33 A.D.2d 683 (N.Y. App. Div. 1969)

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