GILBERT v. ENDRES (2006)

Petitioners commenced this CPLR article 78 proceeding seeking to annul the determination granting their neighbor a special use permit to hold an annual fall harvest festival on her property.   The matter previously was transferred to this Court pursuant to CPLR 7804(g), and we vacated the transfer order and remitted the matter to Supreme Court for further proceedings (Matter of Gilbert v. Endres, 13 A.D.3d 1104, 1105, 787 N.Y.S.2d 554).   It appears on the record before us that the determination to grant the special use permit “was not ‘made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law’ ” (Matter of Butler v. Town of Throop, 303 A.D.2d 976, 976, 756 N.Y.S.2d 678), and thus the court erred in transferring the matter to this Court pursuant to CPLR 7804(g) based on a substantial evidence issue (see Matter of Wal-Mart Stores v. Planning Bd. of Town of N. Elba, 238 A.D.2d 93, 96, 668 N.Y.S.2d 774).   In any event, the special use permit has since expired by its own terms, rendering the proceeding moot, and we conclude that this case does not fall within any exception to the mootness doctrine (see Matter of Lee, 27 A.D.3d 1136, 1136-1137, 810 N.Y.S.2d 715).

It is hereby ORDERED that said proceeding be and the same hereby is unanimously dismissed without costs.

MEMORANDUM: