State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 25, 2015 520023
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In the Matter of PAUL KAIRIS,
Appellant,
v
MEMORANDUM AND ORDER
JOSEPH T. SMITH, as
Superintendent of
Shawangunk Correctional
Facility,
Respondent.
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Calendar Date: May 5, 2015
Before: Garry, J.P., Egan Jr., Lynch and Clark, JJ.
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Paul Kairis, Wallkill, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Arnold of counsel), for respondent.
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Appeal from a judgment of the Supreme Court (Nichols, J.),
entered August 26, 2014 in Columbia County, which, in a
proceeding pursuant to CPLR article 78, granted respondent's
motion to dismiss the petition.
Petitioner commenced this CPLR article 78 proceeding to
challenge a determination of respondent finding him guilty of
violating certain prison disciplinary rules. Supreme Court
granted respondent's pre-answer motion to dismiss the petition on
the ground that petitioner failed to timely serve respondent in
accordance with the order to show cause. Petitioner now appeals.
We reverse. The record reveals, and respondent now
concedes, that petitioner had served his papers in accordance
-2- 520023
with the order to show cause. Inasmuch as respondent has not had
an opportunity to submit an answer, we deem it appropriate to
remit the matter to Supreme Court for further proceedings (see
Matter of Hammond v LaValley, 117 AD3d 1266 [2014]; Matter of
Haughey v Artus, 96 AD3d 1242, 1242-1243 [2012]).
Garry, J.P., Egan Jr., Lynch and Clark, JJ., concur.
ORDERED that the judgment is reversed, on the law, without
costs, motion denied, and matter remitted to the Supreme Court to
permit respondent to serve an answer within 20 days of the date
of this Court's decision.
ENTER:
Robert D. Mayberger
Clerk of the Court