Opinion
January 28, 1975
Appeal from the Erie Special Term.
Present — Marsh, P.J., Cardamone, Mahoney, Del Vecchio and Witmer, JJ.
Judgment unanimously modified by deleting the provision granting petitioner affirmative relief, motion denied, without costs, and respondents granted leave to serve and file an answer within 10 days after service of the order herein with notice of entry. Memorandum: Respondents appeal from a judgment setting aside and vacating the decision of the Common Council of the City of Dunkirk suspending petitioner and directing them to restore him to his official duties in the Police Department with back pay. Petitioner commenced this article 78 proceeding to vacate the determination of the council and respondents moved for an order dismissing the petition because of an objection in point of law. The court denied respondents' motion to dismiss and granted petitioner affirmative relief before respondents had an opportunity to serve their answer, by directing respondents forthwith to restore petitioner to his position with full reimbursement for lost wages. In accordance with the provisions of the statute (CPLR 7804, subd. [f]), upon the denial of respondents' motion to dismiss, affirmative relief should not have been granted petitioner before permitting respondents to answer ( Matter of Sibarco Stations v. Risman, 34 A.D.2d 890).