IN RE: Arnold KAHN

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

IN RE: Arnold KAHN, Individually and as President of Park Lane Condominium, Petitioner-Appellant, v. PLANNING BOARD OF CITY OF BUFFALO and Uniland Development Company, Respondents-Respondents.

Decided: March 27, 2009

PRESENT:  SCUDDER, P.J., HURLBUTT, PERADOTTO, GREEN, AND GORSKI, JJ. Richard J. Lippes & Associates, Buffalo (Richard J. Lippes of Counsel), for Petitioner-Appellant. Alisa A. Lukasiewicz, Corporation Counsel, Buffalo (Timothy A. Ball of Counsel), for Respondent-Respondent Planning Board of City of Buffalo. Magavern Magavern & Grimm LLP, Buffalo (Richard A. Moore of Counsel), for Respondent-Respondent Uniland Development Company.

 Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination approving the site plan for the construction of a residential tower by respondent Uniland Development Company.   The record establishes that petitioner did not argue to respondent Planning Board of City of Buffalo that it violated article 8 of the Environmental Conservation Law in failing to refer the project to the City of Buffalo Environmental Management Commission, as required by the Code of the City of Buffalo.   Thus, that contention was not properly before Supreme Court, nor is it properly before us.  “[I]n a CPLR article 78 proceeding, the [c]ourt's review is limited to the arguments and record adduced before the agency” (Matter of Kaufman v. Incorporated Vil. of Kings Point, 52 A.D.3d 604, 607, 860 N.Y.S.2d 573;  see also Matter of O'Donnell v. Town of Schoharie, 291 A.D.2d 739, 741-742, 738 N.Y.S.2d 459;  Matter of Forjone v. Bove, 280 A.D.2d 948, 720 N.Y.S.2d 869).

We reject petitioner's remaining contentions and otherwise affirm for reasons stated in the decision at Supreme Court.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

MEMORANDUM: