Wallberg v. Planning Board of Town of Pound Ridge

115 A.D.2d 539, 495 N.Y.S.2d 731, 1985 N.Y. App. Div. LEXIS 54946

Opinion

In a proceeding pursuant to CPLR article 78 to compel appellant to grant petitioner’s application for final subdivision approval, the appeal is from an order of the Supreme Court, Westchester County (Ingrassia, J.), dated October 5, 1984, which granted the petition.

Judgment affirmed, with costs.

Because the appellant Planning Board failed to take any action on petitioner’s application for plat approval within 45 days, as is required by Town Law § 276 (4), the application must be deemed approved (see, Matter of Pekar v Town of Veteran Planning Bd., 58 AD2d 703; Matter of Fusaro v Ziemba, 46 AD2d 688; see also, Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, affd 62 NY2d 965). Although the fact that the application may not have complied fully with the requirements of Town Law § 276 (2) (b) might, in an appropriate case, warrant a denial of the application, it does not justify a complete failure to act upon it (see, Matter of Fishman v Arnzen, 29 AD2d 954; Matter of Castle Estates v Hubbard, 52 Misc 2d 774). Contrary to the appellant Planning Board’s contention, the 1972 amendments to Town Law § 276 (L 1972, ch 964) did not effect any change in this rule. Lazer, J. P., Thompson, O’Connor, Rubin and Kunzeman, JJ., concur.