Nassau Recycle Corp. v. City of New York

— In a proceeding pursuant to CPLR article 78, inter alia, to restrain the New York City Environmental Protection Administration from issuing additional permits for the use of, or certifying the availability of, petitioner’s sewer system by third parties, the appeal is from a judgment of the Supreme Court, Richmond County, dated March 30, 1978, which granted petitioner’s motion to strike the answer of the appellant and dismiss the counterclaim contained therein. The appeal brings up for review so much of an order of the same court, dated July 6, 1978, as, upon reargument, adhered to the original determination. Appeal from the judgment dismissed as academic, without costs or disbursements. The judgment was superseded by the order dated July 6, 1978, granting reargument. Order reversed insofar as reviewed, *666without costs or disbursements, petitioner’s motion is denied and appellant is granted leave to serve an amended answer. Said answer is to be served within 20 days after entry of the order to be made hereon. It is the law of the case that there are issues of fact requiring trial on the issue of laches (see Matter of Nassau Recycle Corp. v City of New York, 59 AD2d 763). The appellant should be permitted to serve its proposed amended answer (see CPLR 3025, subd [b]), which contains factual allegations as to such issue. O’Connor, J. P., Mangano, Rabin and Gibbons, JJ., concur.