Irondequoit Assembly of God v. Planning Board

244 A.D.2d 1002, 668 N.Y.S.2d 964, 1997 N.Y. App. Div. LEXIS 12455

Opinion

—Order unanimously vacated without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Inasmuch as the petition in this CPLR article 78 proceeding does not present a substantial evidence issue (see, CPLR 7803 [4]), Supreme Court improperly transferred the proceeding to this Court (see, CPLR 7804 [g]; Matter of Dubb Enters, v New York State Liq. Auth., 187 AD2d 831, 832). We also note that, because petitioner challenges a decision of the Planning Board of the Town of Irondequoit, the court was required to dispose of the matter on the merits and determine all issues raised in the petition (see, Town Law § 274-a [11]; see also, Matter of KiddKott Constr. Co. v Lillis, 124 AD2d 996, 997). We therefore remit the matter to Supreme Court for disposition on the merits. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Monroe County, Bergin, J.) Present—Green, J. P., Law-ton, Callahan, Doerr and Balio, JJ.