Intino v. Hostetter

Appellate Division of the Supreme Court of New York

Intino v. Hostetter

29 A.D.2d 831, 287 N.Y.S.2d 325, 1968 N.Y. App. Div. LEXIS 4688

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 15, 1968

StatusPublished

This text of 29 A.D.2d 831 (Intino v. Hostetter) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Intino v. Hostetter, 29 A.D.2d 831, 287 N.Y.S.2d 325, 1968 N.Y. App. Div. LEXIS 4688 (N.Y. Ct. App. 1968).

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Opinion

Motion for reargument denied, without costs. Memorandum: We recognize that in this proceeding no hearing was held within the meaning of CPLR 7803 (subd. 4). The issue presented was whether the determination was arbitrary and capricious or an abuse of discretion (CPLR 7803, subd. 3). Normally this would be an issue to be passed upon in the first instance by Special Term subject to review on appeal by this court. In the unusual posture, however, that the proceeding came before this court we concluded that it would be an idle ceremony to remand the matter to Special Term. In our former decision (29 A D 2d 625) we stated that the order of Special Term did not specify what issues were to be tried and upon searching the record we found no such issues (cf. Matter of O’Brien v. Commissioner of Educ., 3 A D 2d 321, 325). Upon this motion petitioner contends that the triable factual issue is whether he is the sole party interested in the application and “that (Henry) Cittadino retains no interest or control.” Assuming that following a trial this issue would have been resolved in favor of petitioner we find sufficient in the record to conclude that the determination was neither arbitrary, capricious nor an abuse of the discretion vested in the Authority. Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecchio, JJ.

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Motion for reargument denied, without costs. Memorandum: We recognize that in this proceeding no hearing was held within the meaning of CPLR 7803 (subd. 4). The issue presented was whether the determination was arbitrary and capricious or an abuse of discretion (CPLR 7803, subd. 3). Normally this would be an issue to be passed upon in the first instance by Special Term subject to review on appeal by this court. In the unusual posture, however, that the proceeding came before this court we concluded that it would be an idle ceremony to remand the matter to Special Term. In our former decision (29 A D 2d 625) we stated that the order of Special Term did not specify what issues were to be tried and upon searching the record we found no such issues (cf. Matter of O’Brien v. Commissioner of Educ., 3 A D 2d 321, 325). Upon this motion petitioner contends that the triable factual issue is whether he is the sole party interested in the application and “that (Henry) Cittadino retains no interest or control.” Assuming that following a trial this issue would have been resolved in favor of petitioner we find sufficient in the record to conclude that the determination was neither arbitrary, capricious nor an abuse of the discretion vested in the Authority. Present — Williams, P. J., Bastow, Goldman, Henry and Del Vecchio, JJ.

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Bluebook (online)

29 A.D.2d 831, 287 N.Y.S.2d 325, 1968 N.Y. App. Div. LEXIS 4688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/intino-v-hostetter-nyappdiv-1968.