Opinion
April 9, 1959
Present — McCurn, P.J., Kimball, Williams, Bastow and Goldman, JJ.
Motion for reargument and other relief denied. Memorandum: Upon the return day of this article 78 proceeding the respondents without answering applied to the court by formal written motion for an order dismissing the petition as a matter of law (Civ. Prac. Act, § 1293). In passing upon such an application the allegations of the petition must be assumed to be true in the absence of an answer. If the petition states any facts upon which the petitioner is entitled prima facie to the requested relief, then it may not be dismissed as being legally insufficient. ( Matter of Felice v. Swezey, 278 App. Div. 958; 22 Carmody-Wait, New York Practice, pp. 484-486, §§ 395-398.) In view of these legal principles the order of Special Term denying the motion to dismiss the petition was properly made. We hold that the concession of the Corporation Counsel referred to in the moving papers was limited to the appeal then pending before this court. It has no effect upon the merits of the controversy presented by the petition herein. It follows that our decision as to the legal sufficiency of the petition would have been the same without the concession and reargument of the appeal is not required. All concur.