Strobel v. New York State Department of Environmental Conservation

Appellate Division of the Supreme Court of New York

Strobel v. New York State Department of Environmental Conservation

111 A.D.3d 1402, 974 N.Y.S.2d 861

Appellate Division of the Supreme Court of the State of New York·Decided November 15, 2013·Published

Opinion

Appeal from a judgment of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered June 1, 2012 in a CPLR article 78 proceeding. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners commenced this CPLR article 78 proceeding alleging, inter alia, that respondents acted in an arbitrary and capricious manner in issuing a permit for and undertaking the construction of a spillway at a freshwater pond in the Town of Clarence (respondent). Inasmuch as respondent moved to dismiss the petition pursuant to CPLR 3211 (a) (1), and a special proceeding may be summarily determined “upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised” (CPLR 409 [b]; see CPLR 7804 [a]; Matter of Barreca v DeSantis, 226 AD2d 1085, 1086 [1996]), we reject petitioners’ contention that Supreme Court’s consideration was limited to the issue whether the petition contained a cognizable legal theory (see CPLR 7804 [f]; Matter of Conners v Town of Colonie, 108 AD3d 837, 839 [2013]). We further conclude that the court properly determined that none of [1403]*1403petitioners’ causes of action has merit (see generally Held v Kaufman, 91 NY2d 425, 430-431 [1998]). Present — Centra, J.R, Fahey, Garni, Sconiers and Valentino, JJ.

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Appeal from a judgment of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered June 1, 2012 in a CPLR article 78 proceeding. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners commenced this CPLR article 78 proceeding alleging, inter alia, that respondents acted in an arbitrary and capricious manner in issuing a permit for and undertaking the construction of a spillway at a freshwater pond in the Town of Clarence (respondent). Inasmuch as respondent moved to dismiss the petition pursuant to CPLR 3211 (a) (1), and a special proceeding may be summarily determined “upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised” (CPLR 409 [b]; see CPLR 7804 [a]; Matter of Barreca v DeSantis, 226 AD2d 1085, 1086 [1996]), we reject petitioners’ contention that Supreme Court’s consideration was limited to the issue whether the petition contained a cognizable legal theory (see CPLR 7804 [f]; Matter of Conners v Town of Colonie, 108 AD3d 837, 839 [2013]). We further conclude that the court properly determined that none of [1403]*1403petitioners’ causes of action has merit (see generally Held v Kaufman, 91 NY2d 425, 430-431 [1998]). Present — Centra, J.R, Fahey, Garni, Sconiers and Valentino, JJ.

Strobel v. New York State Department of Environmental Conservation, 111 A.D.3d 1402, 974 N.Y.S.2d 861 (N.Y. Ct. App. 2013).

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