Opinion
October 24, 1977
In a proceeding pursuant to CPLR article 78, inter alia, to restrain the New York City Environmental Protection Administration from issuing additional permits for the use of, or certifying the availability of, petitioner's sewer system by third parties, respondent I.S.P. Holding Corp. appeals from a judgment of the Supreme Court, Richmond County, dated September 16, 1976, which, inter alia, granted the petition and denied its motion to dismiss the proceeding. Judgment reversed, on the law, without costs or disbursements, and proceeding remanded to Special Term for further proceedings in accordance herewith. Appellant's time to serve an answer in accordance herewith is extended until 20 days after entry of the order to be made hereon. Although the record supports Special Term's denial of the motion to dismiss, it discloses that there are issues of fact as to the defense of laches (cf. Matter of Eberhart v La Pilar Realty Co., 45 A.D.2d 679). Therefore, the petition should not have been summarily granted; the appellant is entitled to a trial on that issue (see Matter of Sibarco Stas. v Risman, 34 A.D.2d 890) and, in connection therewith, to submit an answer to the petition limited thereto and to conduct such disclosure proceedings as it may be advised. Hopkins, J.P., Margett, Damiani and O'Connor, JJ., concur.