Opinion
February 2, 1993
Appeal from the Supreme Court, New York County (Alice Schlesinger, J.).
Although a civil service employee who resigns generally has no right to reinstatement (see, Matter of McGill v D'Ambrose, 58 A.D.2d 604), the trial court properly reinstated petitioner so that he could defend against the disciplinary charges at a hearing. The record leaves a "disquieting feeling that an injustice may have occurred, particularly since petitioner has been summarily denied the opportunity to prove his contention at a trial" (Matter of Miciotta v McMickens, 118 A.D.2d 489, 491). Petitioner who has a successful record as a NYCHA officer, denies any drug use and his story of inadvertently ingesting drugs is corroborated by a witness (see, supra).
As for respondents' contention that the trial court improperly ruled on the merits of the petition without allowing respondents to serve an answer, respondents clearly informed the trial court of their relevant arguments in an affirmation in support of their cross-motion to dismiss the petition. Thus, it was not necessary under CPLR 7804 (f) to grant respondents leave to serve an answer to the petition following denial of the motion to dismiss (see, Matter of Kane v New York State Dept. of Correction, 21 A.D.2d 919, 920, lv dismissed 15 N.Y.2d 551; Matter of DeVito v Nyquist, 56 A.D.2d 159, 161, affd 43 N.Y.2d 681).
Concur — Murphy, P.J., Wallach, Ross and Asch, JJ.