Fox Meadows Realty & Development Corp. v. Gardener

Appellate Division of the Supreme Court of New York

Fox Meadows Realty & Development Corp. v. Gardener

209 A.D.2d 616, 619 N.Y.S.2d 296, 1994 N.Y. App. Div. LEXIS 11459

Appellate Division of the Supreme Court of the State of New York·Decided November 21, 1994·Published

Opinion

—In a proceeding pursuant to CPLR article 78 to compel the Town of Pleasant Valley to abandon a certain segment of a Town road to the petitioner, pursuant to Highway Law § 212-a, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), entered July 9, 1993, which dismissed the petition.

Ordered that the judgment is affirmed, with costs.

This is a proceeding to compel the Town to abandon a certain portion of a Town road to the petitioner, pursuant to Highway Law § 212-a. However, the language of the statute is [617]*617permissive, not mandatory, and the petitioner has failed to demonstrate a clear legal right to the relief sought (see, Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16; Klostermann v Cuomo, 61 NY2d 525, 539). Accordingly, the petition was properly dismissed. Bracken, J. P., Lawrence, Friedmann and Goldstein, JJ., concur.

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—In a proceeding pursuant to CPLR article 78 to compel the Town of Pleasant Valley to abandon a certain segment of a Town road to the petitioner, pursuant to Highway Law § 212-a, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), entered July 9, 1993, which dismissed the petition.

Ordered that the judgment is affirmed, with costs.

This is a proceeding to compel the Town to abandon a certain portion of a Town road to the petitioner, pursuant to Highway Law § 212-a. However, the language of the statute is [617]*617permissive, not mandatory, and the petitioner has failed to demonstrate a clear legal right to the relief sought (see, Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12, 16; Klostermann v Cuomo, 61 NY2d 525, 539). Accordingly, the petition was properly dismissed. Bracken, J. P., Lawrence, Friedmann and Goldstein, JJ., concur.

Fox Meadows Realty & Development Corp. v. Gardener, 209 A.D.2d 616, 619 N.Y.S.2d 296, 1994 N.Y. App. Div. LEXIS 11459 (N.Y. Ct. App. 1994).

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209 A.D.2d 616 (Fox Meadows Realty & Development Corp. v. Gardener) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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