
    In the Matter of Mamdoh S. Yaakob, Appellant, v Arnold and Marie Schwartz College of Pharmacy and Health Sciences of Long Island University, Respondent.
   — In a proceeding pursuant to CPLR article 78 to review a determination of the respondent which denied petitioner reappointment as an assistant professor for the 1978-1979 academic year, petitioner appeals from (1) a judgment of the Supreme Court, Kings County, entered August 30, 1978, which, upon respondent’s motion to dismiss the petition, granted the motion for failure to state a cause of action and (2) so much of an order of the same court, dated October 6, 1978 as, upon reargument, adhered to its original determination. Appeal from judgment entered August 30, 1978, dismissed, without costs or disbursements. That judgment was superseded by the order dated October 6, 1978. Order dated October 6, 1978, reversed, insofar as appealed from, without costs or disbursements and, upon reargument, judgment entered August 30, 1978 is vacated and the respondent’s motion to dismiss the petition is denied. The sole basis of respondent’s motion to dismiss the proceeding was that it was not timely, pursuant to the provisions of CPLR 217. On this record petitioner cannot be deemed to have had notice that the court was considering the sufficiency of the petition, nor can it be said that the proof was complete and that petitioner had adduced whatever he would have adduced had he been aware of the alternate ground under consideration. Further, it does not appear that petitioner was afforded the opportunity to submit additional evidence on this point. Under these circumstances it was reversible error for the court to grant dismissal for failure to state a cause of action (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3211:37, p 41). Damiani, J. P., Titone, Gulotta and Shapiro, JJ., concur.  