Lipinczyk v. Dwyer

¶1Order unanimously reversed and proceeding remitted to Erie Special Term for a hearing in accordance with the memorandum. Memorandum: This court ordered proof to be taken to determine the existence of a copy of the information. (Matter of Lipinczyk v. Dwyer 10 A D 2d 794.) *1001A hearing was had without notice to petitioner-appellant and without his participation in any respect. Such a hearing was in the nature of an ex parte proceeding and did not meet the fundamental concept of a fair hearing required by the order of this court. A new hearing must be held upon notice to petitioner at which time he should be given the opportunity to participate either in person or by counsel. (Appeal from order of Brie Special Term after a hearing, denying petitioner’s request that he be furnished with a copy of an information.) Present — Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.