In re Responsible Zoning

Appellate Division of the Supreme Court of New York, Third DepartmentNov 29, 2007
45 A.D.3d 1241 (N.Y. App. Div. 2007)
45 A.D.3d 1241845 N.Y.S.2d 7652007 N.Y. Slip Op. 9483

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No. 502958.

November 29, 2007.

Appeal from an order of the Supreme Court (McNamara, J.), entered September 28, 2006 in Albany County, which, in a proceeding pursuan t to CPLR article 78, partially denied respondents' motions to dismiss the petition for lack of standing.

Lynch, Farrell Hetman, P.L.L.C., Albany (Peter A. Lynch of counsel), for appellant.

John J. Reilly, Corporation Counsel, Albany (Jeffery V. Jamison of Counsel), for Common Council of the City of Albany, respondent.

Whiteman, Osterman Hanna, L.L.P., Albany (Thomas A. Shepardson of counsel), for 41 Holland Avenue, L.L.C., respondent.

Before: Mercure, J.P., Peters, Carpinello and Lahtinen, JJ., concur.


Respondent Thomas J. Burke filed an application to change the zoning for a parcel of property in the City of Albany owned by respondent 41 Holland Avenue, LLC. Respondent Common Council of the City of Albany issued a negative declaration of environmental significance under the State Environmental Quality Review Act ( see ECL art 8), and passed an ordinance changing the zoning for the parcel. After petitioners commenced this CPLR article 78 proceeding, Supreme Court partially granted respondents `motions to dismiss the petition by determining that only certain petitioners had standing. Burke appealed. While this appeal was pending, the court entered a final judgment dismissing the petition. Petitioners appealed that judgment and the appeals were not consolidated.

We must dismiss this appeal because a party may not appeal a nonfinal order as of right in a CPLR article 78 proceeding and no permission to appeal has been granted ( see CPLR 5701 [b] [1]; Matter of Baker v Town of Roxbury, 220 AD2d 961, 963 [1995], lv denied 87 NY2d 807; Matter of Defreestville Area Neighborhood Assn., Inc. v Planning Bd. of Town of N. Greenbush, 16 AD3d 715, 719 n 3 [2005]).

Ordered that the appeal is dismissed, without costs.