Supreme Court, Appellate Division, Second Department, New York.
IN RE: YORKTOWN SMART GROWTH, et al., Appellants, v. TOWN OF YORKTOWN, et al., Respondents.
Decided: January 23, 2019
JOHN M. LEVENTHAL, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.
James Bacon, New Paltz, NY, for appellants. Michael J. McDermott, Town Attorney, Yorktown Heights, NY, for respondents Town of Yorktown, Town Board of Yorktown, and Planning Board of Yorktown, and Zarin & Steinmetz, White Plains, N.Y. (David S. Steinmetz and Jody T. Cross of counsel), for respondents UB Yorktown, LLC, Realty Income Pennsylvania Properties Trust 2, and BJ's Wholesale Club, Inc. (one brief filed).
DECISION & ORDER
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the respondents.
In 2015, the petitioners/plaintiffs commenced the instant hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Town Board of Yorktown to grant a special use permit to the respondent/defendant BJ's Wholesale Club, Inc., and action, inter alia, for declaratory relief. Following commencement of the proceeding/action, the respondents/defendants moved to dismiss the petition/complaint. The Supreme Court, inter alia, granted that branch of the respondents/defendants' motion which was to dismiss the petition, denied the petition, and dismissed the proceeding. The petitioners/plaintiffs appeal.
The appeal from so much of the intermediate order as granted that branch of the motion of the respondents/defendants which was to dismiss the petition must be dismissed because no appeal lies as of right from an intermediate order entered in a proceeding pursuant to CPLR article 78 (see CPLR 5701[b] ), and we decline to grant leave to appeal in light of the entry of a final judgment in this matter. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a] ).
Judicial review of a determination granting an application for a special use permit is limited to ascertaining whether the challenged action was illegal, arbitrary and capricious, or an abuse of discretion (see Matter of Carnelian Farms, LLC v. Leventhal, 151 A.D.3d 844, 845, 56 N.Y.S.3d 552; Matter of Sea Cliff Equities, LLC v. Board of Zoning Appeals of Inc. Vil. of Sea Cliff, 106 A.D.3d 923, 924, 965 N.Y.S.2d 173; Matter of Yacht Club Condominium v. Board of Appeals of Town of Hempstead, 32 A.D.3d 964, 820 N.Y.S.2d 812; Matter of Residents for Future of Briarcliff Manor v. Village of Briarcliff Manor Bd. of Trustees, 239 A.D.2d 350, 352, 657 N.Y.S.2d 95). Here, the determination to grant the application for a special use permit was not illegal, arbitrary and capricious, or an abuse of discretion (see Town of Yorktown Code § 300–21[C][b]; Matter of Sunrise Plaza Assoc. v. Town Bd. of Town of Babylon, 250 A.D.2d 690, 694, 673 N.Y.S.2d 165; Matter of Genesee Farms v. Scopano, 77 A.D.2d 784, 431 N.Y.S.2d 219). Accordingly, we agree with the Supreme Court's determination denying the petition and dismissing the proceeding.
LEVENTHAL, J.P., HINDS–RADIX, DUFFY and BRATHWAITE NELSON, JJ., concur.
Was this helpful?
Response sent, thank you
Welcome to FindLaw's Cases & Codes
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.