Opinion
July 6, 1973
Appeal from the Cattaraugus Special Term.
Present — Del Vecchio, J.P., Marsh, Moule, Simons and Henry, JJ.
Judgment unanimously reversed on the law, without costs, and respondents' cross motion to dismiss petition denied. Respondents' time to answer petition extended until 20 days after entry of the order to be made hereon. Memorandum: In this article 78 proceeding to annul a determination of respondents, Zoning Board of Appeals, Special Term, without passing on respondents' cross motion to dismiss petition made on the ground that petitioner is not an aggrieved party, erroneously dismissed the petition on a ground not raised in the cross motion. Petitioner sought to annul respondents' determination that the use of a mobile home as an office violated an ordinance prohibiting the use of a trailer for living or sleeping purposes and also sought a court direction requiring respondents to issue a permit to petitioner to connect land occupied by it to the village water and sewer systems. Special Term dismissed the petition on the ground that respondents lack power to grant a permit for connecting with water and sewer systems, although the petition also clearly stated a case for annulling respondents' determination. A respondent may raise an objection in point of law in a cross motion to dismiss, and the court has no power, if the motion is denied, to determine the case on grounds not raised in the cross motion without first permitting the respondent to serve his answer (CPLR 7804, subd. [f]). The proper procedure is to consider only the cross motion and, if it is denied, to delay any other determinations until after an answer has been served. ( Matter of Kesterson v. City of Buffalo, 40 A.D.2d 575; Mulonet v. Lasky, 39 A.D.2d 922; Carner v. City of Buffalo, 33 A.D.2d 1098; Matter of Hassett v. Barnes, 11 A.D.2d 1089.) Finding that petitioner is an aggrieved party with standing to institute the proceeding we deny respondents' cross motion to dismiss the petition and we extend respondents' time to answer the petition.