Gilbert v. Endres

13 A.D.3d 1104, 787 N.Y.S.2d 554, 2004 N.Y. App. Div. LEXIS 16350

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 2004
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Ontario County [Frederick G. Reed, A.J.], entered May 7, 2004) to review a determination of respondents. The determination granted a special use permit.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously vacated without costs and the matter is remitted to Supreme Court, Ontario County, for further proceedings in accordance with the following memorandum: Petitioners commenced this CPLR article 78 proceeding, transferred to this Court pursuant to CPLR 7804 (g), seeking to annul the determination granting their neighbor a special use permit to hold an annual fall harvest festival on her property. Respondents failed to file with the clerk of the court or to include in the record before us “a certified transcript of the record of the proceedings under consideration” as required by CPLR 7804 (e). We note that also absent from the record are any findings of fact underlying the determination to issue a special use permit. We therefore vacate the transfer order and remit the matter to Supreme Court for further proceedings in accordance with our decision herein, inasmuch as “the papers are insufficient” (CPLR 7804 [g]; cf. Matter of Butler v Town of Throop, 303 AD2d 976 [2003]). Upon remittal, respondents must provide the requisite certified transcript, and the court must dispose of any “objections as could terminate the proceeding” (CPLR 7804 [g]) and thus could obviate any need to transfer the proceeding to this Court based on the existence of a substantial evidence issue in the petition. Present—Pigott, Jr., P.J., Pine, Scudder, Kehoe and Lawton, JJ.