Gumper v. Biggane — 45 A.D.2d 772

Majority

p. 772

Third Department,

June, 1974

(June 3, 1974)

In the Matter of Frank J. Gumper, as Successor to Alfred M. Murphy, as Chairman of the Board of Commissioners, Rockland County Sewer District No. 1, Petitioner, v. James L. Biggane, as Successor to Henry L. Diamond, as Commissioner of the Department of Environmental Conservation, Respon

p. 773

ent.

Motion by respondent for permission to appeal to this court from an order of Special Term directing that the proceeding be set down for trial of the issues of fact and law presented. Pursuant to CPLR 5701 (subd. [c]), the motion is referred to Mr. Justice Kane, who makes the following decision: Motion denied, without costs. A consideration of the issues of law raised by the affirmative defenses set forth in respondent’s answer and a determination of the sufficiency of the amended petition in the face of these defenses can more expeditiously be made by Trial Term without prejudice to the interests of either party (see CPLR 409, subd. [b]). Herlihy, P. J., Staley, Jr., Greenblott, Sweeney and Kane, JJ., concur.