Opinion
October 28, 1975
Andrew Halloran for petitioner.
Louis J. Lefkowitz, Attorney-General (Stanley Fishman and Howard A. Fromer of counsel), for respondents.
Robert J. Kafin for Loon Lake Homeowners Association and another, respondents-intervenors.
This court's decision of September 13, 1975 ( 83 Misc.2d 686) in the above-entitled matter is modified as follows:
1. Page 691 — parenthetical note should read: (CPLR 7804 (subd [g]), second sentence).
2. Third paragraph, under Conclusion, page 693, first line — should read: "Causes of action 6 and 15 state causes of action for * * *"
3. Second full paragraph of Conclusion on pages 693-694 should read: "Petitioner's 14th cause of action, which pertains to review of En Con's decision of April 8, 1975, clearly raises a CPLR 7803 (subd 4) question. Therefore, this court orders that, upon the service of respondent's answer, all causes of action seeking judicial review of that decision (causes of action 7, 8, and 10 through 14) must be transferred for disposition to the next term of the Appellate Division, Third Department. Respondent has persuaded this court that dismissal (causes of action 1 through 5 and 9) and transfer (causes of action 7, 8 and 10 through 14) are "common sense" dispositions. However, the court notes that these dispositions seem contrary to the language of CPLR 7804 (subd [g]) (see, Thornton, Practice Commentary, McKinney's Cons Laws of NY, Book 7B, CPLR 7804, p 181, and Legislative Studies and Reports, McKinney's Cons Laws of NY, Book 7B, CPLR 7804 (subd [g]), p 183; see, also, Notes of Decisions, McKinney's Cons Laws of NY, Book 7B, CPLR 7804, Notes 129-135, pp 227-234 and 1975-1976 Pocket Part, pp 122-125).
The court respectfully urges that section 817 of article 27 of the Executive Law (Adirondack Park Agency Act) be amended to conform with section 267 Town of the Town Law, section 7-712 Village of the Village Law, and section 82 Gen. City of the General City Law.