—[*1] Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for appellant.

Charles F. Bryant, respondent pro se.

Order and judgment (one paper), Supreme Court, New York County (Emily Jane Goodman, J.), entered November 9, 2010, which vacated respondent's determination terminating petitioner as a school teacher, remanded the matter for a new investigation and hearing under the auspices of a different investigator nunc pro tunc, and sub silentio denied respondent's cross motion to dismiss the petition, unanimously modified, on the law, the judgment vacated, respondent directed to serve an answer within 20 days of service of a copy of this order, and otherwise affirmed, without costs.

Petitioner has sufficiently alleged that the investigator from the Office of Special Investigations acted in bad faith in making the determination that formed the basis for terminating petitioner. Therefore, respondent's motion to dismiss was properly denied. However, the motion court erred in determining the merits of the proceeding without affording respondents an opportunity to serve an answer upon the denial of its motion to dismiss (see Matter of Samuel v Ortiz, 105 AD2d 624, 626-627 [1st Dept 1984]). Concur—Andrias, J.P., Friedman, Moskowitz, Freedman and Manzanet-Daniels, JJ. [Prior Case History: 2010 NY Slip Op 32820(U).]