
    In the Matter of Melvin Garlick, Respondent, v Allyn R. Sielaff, as Correction Commissioner of the City of New York, et al., Appellants.
    [612 NYS2d 824]
   —Judgment, Supreme Court, New York County (Burton Sherman, J.), entered on or about August 19, 1992, which denied respondents’ cross-motion to dismiss the proceeding and granted the petition, modified to the extent of vacating the grant of the petition, granting respondents’ request for leave to serve an answer to the petition within 30 days of the entry of this order, and otherwise affirmed, without costs.

The IAS judgment, in denying respondents’ cross-motion to dismiss, granted the petition notwithstanding respondents’ reservation of a right to answer the petition. Respondents’ dismissal cross-motion was based solely on the ground that necessary parties had not been joined, when in fact such parties had been joined nearly four months earlier. Dismissal was thus correctly denied. However, the petition should not have been granted before joinder of issue, since the record fails to reveal the factual or legal issues respondent might have raised in its answer (see, Matter of 230 Tenants Corp. v Board of Stds. & Appeals, 101 AD2d 53). Concur — Rosenberger, J. P., Wallach and Asch, JJ.

Kupferman, J., dissents and would affirm for the reasons stated by Sherman, J.

Motion insofar as it seeks reargument is granted, and upon reargument, the prior unpublished decision and order of this Court entered on December 21, 1993 is recalled and vacated. The motion insofar as it seeks leave to appeal to the Court of Appeals is denied.

Kupferman, J., dissents and would deny reargument.  