Opinion
April 1, 1996
Appeal from the Supreme Court, Westchester County (Wood, J.).
Ordered that the order and judgment is modified by deleting the provision thereof which granted the petition and substituting therefor a provision directing the appellants to serve and file their answers to the petition within five days after service upon them of a copy of this decision and order with notice of entry; as so modified, the judgment is affirmed, with one bill of costs to the appellants appearing separately and filing separate briefs, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings.
We agree with the Supreme Court that the present proceeding is in the nature of mandamus to compel and, accordingly, the time limit to commence this proceeding would not commence until after the County appellants' refusal to perform their duty ( see, CPLR 217; Matter of O'Connell v. Kern, 287 N.Y. 297; Matter of Weir v. Canestrari, 130 A.D.2d 906; Matter of Dionisio v. Board of Educ., 118 A.D.2d 854). Since the petitioners did not unreasonably delay in demanding action through the commencement of this proceeding ( see, Matter of Rapess v. Ortiz, 99 A.D.2d 413, 414; Matter of Central School Dist. No. 2 v. New York State Teachers Retirement Sys., 46 Misc.2d 225, 229, affd on other grounds 23 N.Y.2d 213), we affirm the denial of the motion to dismiss.
However, the Supreme Court improperly granted the petition on the merits. CPLR 7804 (f) provides that: "The respondent may raise an objection in point of law by setting it forth in his answer or by a motion to dismiss the petition * * * [i]f the motion is denied, the court shall permit the respondent to answer".
As a result of the mandatory language contained in CPLR 7804 (f), the petition may not be decided on the merits without allowing the appellants the opportunity to interpose an answer unless the facts are so fully presented in the motion papers that it is clear that there are no factual disputes and no prejudice will result to the parties ( see, Matter of Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educ. Servs., 63 N.Y.2d 100; O'Hara v. Del Bello, 47 N.Y.2d 363; Briedis v. Village of Tuxedo Park, 156 A.D.2d 744). The record reflects several factual and legal issues which are in dispute and have not been fully addressed by the parties. Accordingly, the order and judgment is modified as indicated. Balletta, J.P., Sullivan, Joy and Krausman, JJ., concur.