Allison v. New York State Department of Correctional Services

Judg-ment unanimously vacated, without costs. Memorandum: Special Term erred in denying petitioners’ application for an order to show cause as without merit and dismissing the petition. An order to show cause is simply a substitute for a notice of motion as a device for bringing on a special proceeding. The merits of the petition are not reached in granting or denying the order (see 2 Carmody-Wait 2d, NY Prac, § 8:43, p 73; Siegel, New York Practice, § 248). (Appeal from judgment of Cayuga Supreme Court—art 78.) Present—Cardamone, J. P., Hancock, Jr., Schnepp, Callahan and Moule, JJ.