
    In the Matter of Lee Pokoik, Appellant, v Department of Health Services of County of Suffolk et al., Respondents.
   — In a proceeding pursuant to CPLR article 78 to compel the respondents to comply with Public Health Law § 1340 (2) (a), the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Mclnerney, J.), dated June 10, 1985, which granted the respondents’ separate motions and dismissed the proceeding.

Judgment reversed, with one bill of costs, motion denied, and proceeding reinstated. The respondents’ time to answer the petition is extended until 20 days after service upon them of a copy of the order to be made hereon, with notice of entry.

In dismissing the proceeding, Special Term mischaracterized it as one in the nature of mandamus to review rather than mandamus to compel. Special Term dismissed for lack of a final determination, concluding that the proceeding was premature. However, a proceeding pursuant to CPLR article 78 sounding in mandamus to compel may lie in the absence of a final determination (see, Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88, 96). We conclude that if the petitioner proves the allegations in his petition he will be entitled to relief by way of mandamus to compel pursuant to Public Health Law §§ 13, 1340 (2) (a). Mollen, P. J., Rubin, Fiber and Kooper, JJ., concur.  