Town of Hamburg v. Vergos ( 1990 )

Order unanimously reversed on the law with costs and matter remitted to Supreme Court for further proceedings, in accordance with the following memorandum: The order on appeal declared premises at 3246 and 3252 Lakeshore Road in the Town of Hamburg a public nuisance and authorized the town to advertise for bids to demolish structures thereon. That order is characterized by the parties on appeal as a grant of summary judgment to the town. It was based on a notice of motion, an affidavit and an unsworn report by the town, designated "petitioner”, and an opposing affidavit by the property owner, designated "respondent”, but there was no underlying petition. The town’s submission failed to establish by evidence in admissible form its entitlement as a matter of law to the relief demanded (see, Zuckerman v City of New York, 49 NY2d 557, 562). Thus, to the extent that it could be viewed as a motion for summary judgment, such motion should have been denied. If this matter is to proceed further, conversion to a special proceeding or an action is required (see, CPLR 103). (Appeal from order of Supreme Court, Erie County, Mintz, J. — public nuisance.) Present — Dillon, P. J., Doerr, Green, Pine and Davis, JJ.