Rubin v. Board of Education

—In a proceeding pursuant to CPLR article 78, inter alia, to compel the appellants to pay the petitioners their full salaries for the period between February 20 and February 24, 1978, the appeal is from a judgment of the Supreme Court, Nassau County, dated July 19, 1978 which granted the petition. Judgment reversed, with $50 costs and disbursements, and matter remitted to Special Term for further proceedings consistent herewith. The appellants’ time to serve their answer is extended until 20 days after service upon them of a copy of the order to be entered hereon, together with notice of entry thereof. CPLR 7804 (subd [f]) requires that where a respondent’s motion to dismiss has been denied, the respondent must be granted the opportunity to answer before a decision on the merits is made. This requirement has been waived by courts of this State in very limited circumstances (see Matter of De Vito v Nyquist, 56 AD2d 159; Matter of Kane v New York State Dept, of Correction, 21 AD2d 919). Certainly, the record in this case does not justify such a waiver. Substantial questions on such matters as whether the petitioners agreed to arbitration require the appellants be permitted to answer (see Matter of Posner v Rockefeller, 33 AD2d 683, affd 25 NY2d 720; Matter of La Rocque v Farnan, 51 AD2d 1057). Lazer, J. P., Margett, Martuscello and Mangano, JJ., concur.