SLIZ v. COUNTY OF ERIE

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Colleen SLIZ, Petitioner-Respondent, v. COUNTY OF ERIE, Respondent-Appellant.

Decided: April 29, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, PINE, AND LAWTON, JJ. Frederick A. Wolf, County Attorney, Buffalo (Kristin Klein Wheaton of Counsel), for Respondent-Appellant. Sargent & Collins, LLP, Williamsville (Richard G. Collins of Counsel), for Petitioner-Respondent.

Respondent appeals from an order denying its “cross petition” seeking dismissal of the CPLR article 78 petition and affording respondent 30 days in which to file and serve an answer.   Although no appeal lies as of right from an intermediate order in such a proceeding (see CPLR 5701[b][1] ), we treat the notice of appeal as an application for permission to appeal and grant the application (see CPLR 5701[c];  Matter of Conde v. Aiello, 204 A.D.2d 1029, 613 N.Y.S.2d 94).   We nevertheless conclude, however, that Supreme Court properly denied the “cross petition” at this juncture of the litigation and afforded respondent the opportunity to file and serve an answer.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: