40 A.D.2d 575 (1972)

In the Matter of Elaine M. Kesterson, Respondent, v. City of Buffalo, Appellant

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

July 6, 1972

Judgment unanimously reversed and motion to dismiss petition denied, without costs.


In this article 78 proceeding to review a determination by the Common Council of the City of Buffalo, confirming an assessment against petitioner's real property which represented the city's expenses in demolishing as unsafe a building on the property, respondent moved to dismiss the petition as legally insufficient. Without expressly passing on the motion, Special Term awarded judgment to petitioner annulling the assessment. We agree with the conclusion implicit in Special Term's determination that the petition is not legally insufficient and that the motion to dismiss should therefore be denied. However, affirmative relief should not have been granted to petitioner before permitting respondent-appellant to serve an answer (CPLR 7804, subd. [f]; Matter of Lakeland Water Dist. v. Onondaga County Water Auth., 24 N.Y.2d 400, 410; Matter of Sibarco Stations, v. Risman, 34 A.D.2d 890; Carner v. City of Buffalo, 33 A.D.2d 1098). In view of respondent's express reference in its notice of motion to its desire to serve an answer if its motion should be denied, and its reaffirmation of that desire on oral argument of this appeal, there can be no claim of waiver of the city's right to answer (see Matter of Board of Educ. v. City of Buffalo, 32 A.D.2d 98).


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