Degnan v. Rahn , 770 N.Y.S.2d 255 ( 2003 )

— Appeal from a judgment (denominated order) of Supreme Court, Monroe County (Bergin, J.), entered December 20, 2002, which denied respondents’ motion to dismiss the CPLR article 78 petition, granted the petition and determined that petitioner is entitled to compensation as an investigator/detective and is entitled to maintain that status.

It is hereby ordered that the judgment so appealed from be and the same hereby is modified on the law by vacating those parts granting the petition and as modified the judgment is affirmed without costs, and respondents are granted 20 days from service of the order of this Court with notice of entry to serve and file an answer.

Memorandum: Respondents appeal from a judgment denying their motion to dismiss the petition, granting the petition and determining that petitioner is entitled to compensation as an investigator/detective retroactive to April 7, 1998, and is further entitled to maintain that status. Because the petition was filed within four months of the denial of petitioner’s request for that relief, this proceeding is not time-barred (see Matter of Densmore v Altmar-Parish-Williamstown Cent. School Dist., 265 AD2d 838, 839 [1999], lv denied 94 NY2d 758 [2000]). Respondents’ submissions are insufficient to establish the equitable bar of laches. “The mere lapse of time, without a showing of prejudice, will not sustain a defense of laches” (Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 816 [2003]).

Because respondents were not afforded an opportunity to serve an answer and because the record on this appeal is insufficient to permit resolution of the other issues raised in the petition, we modify the judgment by vacating those parts granting the petition and grant respondents 20 days from service of the order of this Court with notice of entry to serve and file an answer (see CPLR 7804 [f]; Matter of White v County of Jefferson, 285 AD2d 964 [2001]).

All concur except Hurlbutt, J., who dissents and votes to reverse in accordance with the following memorandum.