Opinion
2013-11-15
In the Matter of Gerald STROBEL, Faith Strobel, James Collins, Patricia Collins, Frederick Minter and Barbara Minter, Petitioners–Appellants, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Town of Clarence, Erie County Department of Health, James Buono and Kelli Buono, Respondents–Respondents.
Appeal from a judgment of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered June 1, 2012 in a CPLR article 78 proceeding. The judgment dismissed the petition. Blair & Roach, LLP, Tonawanda (David L. Roach of Counsel), for Petitioners–Appellants. Eric T. Schneiderman, Attorney General, Buffalo (Timothy Hoffman of Counsel), for Respondent–Respondent New York State Department of Environmental Conservation.
Appeal from a judgment of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered June 1, 2012 in a CPLR article 78 proceeding. The judgment dismissed the petition.
Blair & Roach, LLP, Tonawanda (David L. Roach of Counsel), for Petitioners–Appellants. Eric T. Schneiderman, Attorney General, Buffalo (Timothy Hoffman of Counsel), for Respondent–Respondent New York State Department of Environmental Conservation.
*862Bennett, Difilippo & Kurtzhalts, LLP, Holland (Ronald P. Bennett of Counsel), for Respondent–Respondent Town of Clarence.
Michael A. Siragusa, County Attorney, Buffalo (Kenneth R. Kirby of Counsel), for Respondent–Respondent Erie County Department of Health.
Myers, Quinn & Schwartz, LLP, Williamsville (James I. Myers of Counsel), for Respondents–Respondents James Buono and Kelli Buono.
MEMORANDUM:
Petitioners commenced this CPLR article 78 proceeding alleging, inter alia, that respondents acted in an arbitrary and capricious manner in issuing a permit for and undertaking the construction of a spillway at a freshwater pond in the Town of Clarence (respondent). Inasmuch as respondent moved to dismiss the petition pursuant to CPLR 3211(a)(1), and a special proceeding may be summarily determined “upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised” (CPLR 409[b]; see CPLR 7804 [a]; Matter of Barreca v. DeSantis, 226 A.D.2d 1085, 1086, 641 N.Y.S.2d 953), we reject petitioners' contention that Supreme Court's consideration was limited to the issue whether the petition contained a cognizable legal theory ( seeCPLR 7804[f]; Matter of Conners v. Town of Colonie, 108 A.D.3d 837, 839, 968 N.Y.S.2d 717). We further conclude that the court properly determined that none of petitioners' causes of action has merit ( see generally Held v. Kaufman, 91 N.Y.2d 425, 430–431, 671 N.Y.S.2d 429, 694 N.E.2d 430).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.