BUTLER v. TOWN OF THROOP (2003)

Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Michael BUTLER, Petitioner, v. TOWN OF THROOP, Town Board of Town of Throop, and Planning Board of Town of Throop, Respondents.

Decided: March 21, 2003

PRESENT: PIGOTT, JR., P.J., PINE, HURLBUTT, LAWTON, and HAYES, JJ.

Boyle & Anderson, P.C., Auburn (Ross M. Tisci of Counsel), and Ventre Law Office, Syracuse, for Petitioner. Hiscock & Barclay, LLP, Syracuse (Andrew J. Leja of Counsel), for Respondents.

Supreme Court transferred the proceeding herein to this Court pursuant to CPLR 7804(g) on the ground that the petition raises an issue of substantial evidence. That was error. The determination was not “made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law” (7803[4] ), and thus no substantial evidence was raised. We also note that, because petitioner challenges a decision of respondent Planning Board of the Town of Throop, the court was required to dispose of the matter on the merits and determine all issues raised in the petition (see Town Law § 274-a[11]; Matter of Irondequoit Assembly of God v. Planning Bd. of Town of Irondequoit, 244 A.D.2d 1002, 1003, 668 N.Y.S.2d 964). We therefore vacate the order transferring the proceeding to this Court and remit the matter to Supreme Court, Cayuga County, for disposition on the merits.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously vacated without costs and the matter is remitted to Supreme Court, Cayuga County, for further proceedings.

MEMORANDUM:

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