Legal Opinion
Warwick v. Henderson
Appellate Division of the Supreme Court of the State of New York
Decided February 21, 1986PublishedCited by 5 opinions
1Opinion of the Court
—Judgment unanimously reversed, on the law, and petition reinstated. Memorandum: An appeal from a preanswer dismissal of a CPLR article 78 petition brought on by order to show cause is not an appeal from an ex parte order; therefore, the appeal is taken as of right.
The court erred in dismissing the petition sua sponte prior to service of a responsive pleading. Failure to exhaust administrative remedies is not an element of an article 78 claim for relief, but an affirmative defense which must be raised by respondent either in an answer or by preanswer motion or else be deemed waived (Matter of…
2Cases cited3 opinions
- Consolidated Edison Co. v. Public Service CommissionNew York Court of Appeals · 1984
- Mallard v. DalsheimAppellate Division of the Supreme Court of the State of New York · 1983
- Consolidated Edison Co. of New York, Inc. v. Public Service CommissionAppellate Division of the Supreme Court of the State of New York · 1983
3Cited by5 opinions
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- Greco v. TrincellitoAppellate Division of the Supreme Court of the State of New York · 1994
- SCS Business & Technical Institute, Inc. v. Barrios-PaoliAppellate Division of the Supreme Court of the State of New York · 1989
- Matter of Bobar v. Transit Adjudication Bur.Appellate Division of the Supreme Court of the State of New York · 2021
- Matter of Galunas v. AnnucciAppellate Division of the Supreme Court of the State of New York · 2018