Piekut v. Martin

266 A.D.2d 395, 698 N.Y.S.2d 148, 1999 N.Y. App. Div. LEXIS 11507

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1999
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Planning Board of the Town of Smithtown, dated December 6, 1994, denying the petitioner’s application for a subdivision of property, the appeal is from (1) a decision of the Supreme Court, Suffolk County (Doyle, J.), dated July 1, 1998, and (2) an order of the same court, entered August 25, 1998, which annulled the determination and granted the petitioner’s application to the extent of remitting the matter to the respondent Planning Board of the Town of Smithtown for further proceedings.

Ordered that on the Court’s own motion, the notice of appeal from the order entered August 25, 1998, is deemed to be an application for leave to appeal, and leave to appeal is granted {see, CPLR 5701 [c]); and it is further,

Ordered that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the order is reversed, on the law, without costs or disbursements, and the determination is confirmed.

The Supreme Court improperly set aside the determination of the Planning Board of the Town of Smithtown denying the petitioner’s application for a subdivision of property. The denial of the petitioner’s application was not arbitrary or capricious, and was supported by substantial evidence (see, Matter of Dueger v Zoning Bd. of Appeals, 96 AD2d 905, affd 61 NY2d 743). Bracken, J. P., Joy, Goldstein and Luciano, JJ., concur.