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IN RE: GERALD STROBEL, FAITH STROBEL, JAMES COLLINS, PATRICIA COLLINS, FREDERICK MINTER AND BARBARA MINTER, PETITIONERS–APPELLANTS, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, TOWN OF CLARENCE, ERIE COUNTY DEPARTMENT OF HEALTH, JAMES BUONO AND KELLI BUONO, RESPONDENTS–RESPONDENTS.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioners commenced this CPLR article 78 proceeding alleging, inter alia, that respondents acted in an arbitrary and capricious manner in issuing a permit for and undertaking the construction of a spillway at a freshwater pond in the Town of Clarence (respondent). Inasmuch as respondent moved to dismiss the petition pursuant to CPLR 3211(a)(1), and a special proceeding may be summarily determined “upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised” (CPLR 409[b]; see CPLR 7804[a]; Matter of Barreca v. DeSantis, 226 A.D.2d 1085, 1086), we reject petitioners' contention that Supreme Court's consideration was limited to the issue whether the petition contained a cognizable legal theory (see CPLR 7804[f]; Matter of Conners v. Town of Colonie, 108 AD3d 837, 839). We further conclude that the court properly determined that none of petitioners' causes of action has merit (see generally Held v. Kaufman, 91 N.Y.2d 425, 430–431).
Frances E. Cafarell
Clerk of the Court
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Docket No: CA 13–00572
Decided: November 15, 2013
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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