In the Matter of Charles F. Bryant, Respondent, v. New York City Department of Education, Appellant

Petitioner has sufficiently alleged that the investigator from the Office of Special Investigations acted in bad faith in making the determination that formed the basis for terminating petitioner. Therefore, respondent’s motion to dismiss was properly denied. However, the motion court erred in determining the merits of the proceeding without affording respondents an opportunity to serve an answer upon the denial of its motion to dismiss (see Matter of Samuel v Ortiz, 105 AD2d 624, 626-627 [1st Dept 1984]). Concur — Andrias, J.E, Friedman, Moskowitz, Freedman and Manzanet-Daniels, JJ.