Short v. Safir

—Order and judgment (one paper), Supreme Court, New York County (William McCooe, J.), entered September 29, 1998, which, in a proceeding pursuant to CPLR article 78 to compel respondent Police Commissioner to appoint petitioner to the position of Detective pursuant to Administrative Code of the City of New York § 14-103 (b) (2), denied respondents’ cross motion to dismiss the petition as barred by the Statute of Limitations and for failure to make a 115 demand and await a refusal, and granted the petition, unanimously modified, on the law, to vacate the judgment granting the petition and direct service of an answer, and otherwise affirmed, without costs. Respondents should have been afforded an opportunity to answer, there being nothing about their motion to dismiss to make it appear that their only defenses were those being raised in the motion (CPLR 7804 [f]; see, Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs., 63 NY2d 100, 103; compare, Matter of Davila v New York City Hous. Auth., 190 AD2d 511, lv denied 87 NY2d 801). Concur— Ellerin, P. J., Wallach, Lerner, Andrias and Saxe, JJ.