GILBERT v. ENDRES (2004)

Petitioners commenced this CPLR article 78 proceeding, transferred to this Court pursuant to CPLR 7804(g), seeking to annul the determination granting their neighbor a special use permit to hold an annual fall harvest festival on her property.   Respondents failed to file with the clerk of the court or to include in the record before us “a certified transcript of the record of the proceedings under consideration” as required by CPLR 7804(e).   We note that also absent from the record are any findings of fact underlying the determination to issue a special use permit.   We therefore vacate the transfer order and remit the matter to Supreme Court for further proceedings in accordance with our decision herein, inasmuch as “the papers are insufficient” (7804[g];  cf. Matter of Butler v. Town of Throop, 303 A.D.2d 976, 756 N.Y.S.2d 678).   Upon remittal, respondents must provide the requisite certified transcript, and the court must dispose of any “objections as could terminate the proceeding” (7804[g] ) and thus could obviate any need to transfer the proceeding to this Court based on the existence of a substantial evidence issue in the petition.

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, Ontario County, for further proceedings.

MEMORANDUM: