O'Sullivan v. Town of Ramapo Planning Board

20 A.D.2d 559, 1963 N.Y. App. Div. LEXIS 2711

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 1963
• Status: Published

Opinion

Pursuant to article 78 of the former Civil Practice Act, petitioners originally commenced a proceeding in the Supreme Court, Rockland County, to annul a determination of the Planning Board of the Town of Ramapo, and for other relief. Mr. Justice John J. Dillon, sitting in that court, on September 24, 1963 made an order dismissing the petition in that proceeding. Claiming that their constitutional and statutory rights have been infringed, the petitioners pursuant to article 78 of the Civil Practice Law and Rules have now instituted a proceeding in this court: (a) to invalidate said order of September 24, 1963 on the ground that it was issued “ in excess of the jurisdiction ” of said court and said Justice, two of the respondents herein; (b) to compel said respondents to direct that a trial be held of the issues of fact raised in the original article 78 proceeding in the Supreme Court, Rock-land County; and (e) to compel said respondents to make an order placing said proceeding on the Trial Calendar for a trial of the issues of fact before a court and jury. The two respondents named have made a cross motion to dismiss the petition in the proceeding in this court on the ground that the petition is insufficient as matter of law and that petitioners’ remedy is by an appeal. The respondent Northern Properties, Inc., has joined in this motion to dismiss. The petitioners, in turn, have made a further cross motion to dismiss said respondents’ motion. Cross motion of the respondents to dismiss as insufficient the petition in the proceeding in this court is granted, and said petition and proceeding are dismissed, without costs. Petitioners’ cross motion to dismiss the respondents’ said cross motion is denied. Beldock, P. J., Christ, Brennan, Hill and Rabin, JJ., concur.