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COUNCIL OF TEACHERS v. BOCES

63 N.Y.2d 100 (1984)

In the Matter of Nassau Boces Central Council of Teachers, by its President, Robert Dreaper, on Behalf of Adult Education Instructors and All Others Similarly Situated, Appellant, v. Board of Cooperative Educational Services of Nassau County et al., Respondents.

Court of Appeals of the State of New York.

Decided September 20, 1984.

Attorney(s) appearing for the Case

Stanley A. Immerman for appellant.

Seymour H. Kligler for Board of Cooperative Educational Services of Nassau County, respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, SIMONS and KAYE concur.

MEYER, J.

When the respondent in an article 78 proceeding challenges petitioner's standing only, it is error to dismiss the petition on the merits prior to service of respondent's answer. The mandate of CPLR 7804 (subd [f]) that, "If the motion is denied, the court shall permit respondent to answer, upon such terms as may be just" proscribes dismissal on the merits...

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