| In the Matter of A. Dennis Gardner Petitioner v Coxsackie-athens Central School District Board of Education |
| Motion No: #511516 |
| Slip Opinion No: 2011 NY Slip Op 66610(U) |
| Decided on March 4, 2011 |
| Appellate Division, Third Department, Motion Decision |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This motion is uncorrected and is not subject to publication in the Official Reports. |
Decided and
Entered: March 4, 2011
Case #511516
In the Matter of A. DENNIS GARDNER, Petitioner, Respondent. |
DECISION AND ORDER ON MOTION |
Motion to confirm that the order appealed from constitutes an order appealable as of right or, in the alternative, for
permission to appeal and direct that the appeal be heard together with the issues raised after transfer of the proceeding.
Supreme Court
denied respondent's motion to dismiss and directed that the matter be transferred to the Appellate Division, Third Department, under a separate
transfer order to review the issue of whether the administrative determination being challenged was supported by substantial evidence. The order
of transfer brings up for review not only the issue of substantial evidence but also the nonfinal order denying the motion to dismiss (see CPLR
7804 [g]; Matter of Board of Educ. of Union-Endicott Cent. School Dist. v New York State Pub. Empl. Relations Bd., 250 AD2d 996 [1998];
Matter of Schultz v Roberts, 138 AD2d 980 [1988]; Matter of Desmone v Blum, 99 AD2d 170 [1984]).
Upon the papers filed in
support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion to confirm that the order appealed from
constitutes an order appealable as of right is denied, without costs, and it is further
ORDERED that the motion for permission to appeal
is referred to Justice Peters, who makes the following decision: Motion denied, without costs, as unnecessary. It is further
ORDERED
that the motion to direct that the appeal be heard together with the issues raised after the transfer of the proceeding is denied, without costs, as
unnecessary.
PETERS, J.P., ROSE, MALONE JR., STEIN and EGAN JR., JJ., concur.
ENTER:
Robert D.
Mayberger
Clerk of the Court