New Victoria Auto Shop, Inc. v. Curran

284 A.D.2d 536, 727 N.Y.S.2d 328, 2001 N.Y. App. Div. LEXIS 6790

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 25, 2001
• Status: Published

Opinion

—Proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals for the Incorporated Village of Freeport, dated September 22, 1999, which, after a hearing, denied the petitioner’s application for a determination that its use of the certain premises for auto sales and an accessory motor vehicle repair shop was a permitted use. By order of the Supreme Court, Nassau County (DiNoto, J.), dated March 13, 2000, the proceeding was transferred to this Court pursuant to CPLR 7804 (g) and 7803 (4).

Ordered that the order transferring the proceeding to this Court is vacated, without costs or disbursements, and the proceeding is remitted to the Supreme Court, Nassau County, for a determination of all questions raised.

We agree with the parties’ contention that the Supreme Court should have disposed of this matter on the merits, instead of transferring it to this Court (see, Village Law 7-712-c). Thus, the matter is remitted to the Supreme Court, Nassau County for a determination of all questions raised (see, Bailey v Smith, 75 AD2d 573). Ritter, J. P., Altman, McGinity, Smith and Cozier, JJ., concur.