City of Schenectady v. New York State Off-Track Pari-Mutuel Betting Commission

Respondent moves to dismiss the instant proceeding as a matter of law upon the basis that from the face of the petition it appears that it is prematurely brought, that no question reviewable in an article 78 proceeding has been raised, and that the petition does not state a cause of action. While not expressed in such terms, this motion to dismiss upon ‘ ‘ objections in point of law ” (CPLR 7804, subd. [f]) is in the nature of a demurrer (Matter of Board of Educ. of City School Dist. of City of Mount Vernon v. Allen, 32 A D 2d 985). Upon such a motion, all of the allegations of the petition…