IN RE: SOUTH BLOSSOM VENTURES (2007)

Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination of the Town Board of respondent Town of Elma denying petitioner's application for site plan approval and a preliminary business use permit and issuing a positive declaration pursuant to article 8 of the Environmental Conservation Law (State Environmental Quality Review Act).   Respondents moved to dismiss the petition pursuant to CPLR 7804 for failure to state a cause of action, and Supreme Court sua sponte converted the motion to one for summary judgment and dismissed the petition upon determining that the action of the Town Board in denying petitioner's application was not arbitrary or capricious.

 We note at the outset that the court erred in converting the motion to dismiss to one for summary judgment and dismissing the petition without providing adequate notice to the parties that it intended to do so (see CPLR 3211[c];  Mihlovan v. Grozavu, 72 N.Y.2d 506, 534 N.Y.S.2d 656, 531 N.E.2d 288).   Here, the Town Board denied petitioner's application for site plan approval and a preliminary business use permit without providing any reasoning for the denial, and we note in addition that the Town of Elma Planning Board had approved the application.  “ ‘Findings of fact which show the actual grounds of a decision are necessary for an intelligent judicial review of a quasi-judicial or administrative determination’ ” (Matter of Perrella v. Suffolk County Classification & Salary Appeals Bd., 117 A.D.2d 603, 604, 498 N.Y.S.2d 70;  see Matter of Paloma Homes, Inc. v. Petrone, 10 A.D.3d 612, 781 N.Y.S.2d 675).   We therefore reverse the judgment and remit the matter to Supreme Court for further proceedings consistent with our decision.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Erie County, for further proceedings.

MEMORANDUM: