Dougherty v. Mammina

261 A.D.2d 400, 687 N.Y.S.2d 287, 1999 N.Y. App. Div. LEXIS 4468

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1999
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the Town of North Hempstead Zoning Board of Appeals, dated August 14, 1996, which directed the petitioner to prepare and submit a Draft Environmental Impact Statement in connection with his application to obtain a variance for a nonconforming use, the appeal is from an interlocutory judgment of the Supreme Court, Nassau County (Schmidt, J.), dated September 30, 1997, which denied the appellants’ motion to dismiss the petition, annulled the determination, and remitted the matter to the appellants for further consideration of the merits of the variance application.

Ordered that on the Court’s own motion, the notice of appeal is deemed an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [b] [1]; [c]), and it is further,

Ordered that the interlocutory judgment is affirmed, with costs.

The Supreme Court properly determined that the petitioner’s application is exempt from review under the State Environmental Quality Review Act, ECL article 8 (hereinafter SEQRA). We reject the appellants’ contention that the petition should not have been granted before the service of an answer pursuant to CPLR 7804 (f). A review of the record discloses that the Supreme Court was fully informed of all issues pertaining to the SEQRA review and no purpose would be served by remitting the matter to the Supreme Court for service of an answer (see, Matter of Adamag Realty Corp. v Diamante, 254 AD2d 413; Briedis v Village of Tuxedo Park, 156 AD2d 744, 746). O’Brien, J. P., Florio, McGinity and Luciano, JJ., concur.