                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 25, 2015                     520023
________________________________

In the Matter of PAUL KAIRIS,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
JOSEPH T. SMITH, as
   Superintendent of
   Shawangunk Correctional
   Facility,
                    Respondent.
________________________________


Calendar Date:   May 5, 2015

Before:   Garry, J.P., Egan Jr., Lynch and Clark, JJ.

                               __________


     Paul Kairis, Wallkill, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Arnold of counsel), for respondent.

                               __________


      Appeal from a judgment of the Supreme Court (Nichols, J.),
entered August 26, 2014 in Columbia County, which, in a
proceeding pursuant to CPLR article 78, granted respondent's
motion to dismiss the petition.

      Petitioner commenced this CPLR article 78 proceeding to
challenge a determination of respondent finding him guilty of
violating certain prison disciplinary rules. Supreme Court
granted respondent's pre-answer motion to dismiss the petition on
the ground that petitioner failed to timely serve respondent in
accordance with the order to show cause. Petitioner now appeals.

      We reverse. The record reveals, and respondent now
concedes, that petitioner had served his papers in accordance
                              -2-                  520023

with the order to show cause. Inasmuch as respondent has not had
an opportunity to submit an answer, we deem it appropriate to
remit the matter to Supreme Court for further proceedings (see
Matter of Hammond v LaValley, 117 AD3d 1266 [2014]; Matter of
Haughey v Artus, 96 AD3d 1242, 1242-1243 [2012]).

     Garry, J.P., Egan Jr., Lynch and Clark, JJ., concur.



      ORDERED that the judgment is reversed, on the law, without
costs, motion denied, and matter remitted to the Supreme Court to
permit respondent to serve an answer within 20 days of the date
of this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
