IN RE: IMPERIAL IMPROVEMENTS

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

IN RE: IMPERIAL IMPROVEMENTS, LLC, Appellant, v. TOWN OF WAPPINGER ZONING BOARD OF APPEALS, et al., Respondents.

Decided: January 22, 2002

DAVID S. RITTER, Acting P.J., SANDRA J. FEUERSTEIN, HOWARD MILLER and A. GAIL PRUDENTI, JJ. Corbally, Gartland & Rappleyea, LLP, Poughkeepsie, N.Y. (Jon Holden Adams of counsel), for appellant. Vergilis, Stenger, Roberts & Pergament, Wappinger Falls, N.Y. (Antonia T. Lucia of counsel), for respondents Town of Wappinger Zoning Board of Appeals and Planning Board of the Town of Wappinger. Shanley, Sweeney, Reilly & Allen, P.C., Albany, N.Y. (Christopher E. Buckey and J. Stephen Reilly of counsel), for respondent Martin's Foods of South Burlington, Inc.

In a proceeding pursuant to CPLR article 78 to review a determination of the Planning Board of the Town of Wappinger dated April 17, 2000, which granted conditional site plan approval for the construction of a supermarket, and a determination of the Town of Wappinger Zoning Board of Appeals dated May 9, 2000, which granted area variances for the same project, the petitioner appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Dutchess County (Pagones, J.), dated September 11, 2000, as dismissed the petition.

Motion by the respondent Martin's Foods of South Burlington, Inc., to dismiss the appeal as academic.

ORDERED that the motion is granted and the appeal is dismissed as academic, without costs or disbursements.

The petitioner failed to move in the Supreme Court for a preliminary injunction to enjoin the construction of the subject supermarket.   In addition, the petitioner failed to move in this court for a preliminary injunction to preserve the status quo pending the determination of this appeal.   Thus, the petitioner failed to preserve its rights pending judicial review and the appeal must be dismissed as academic (see, Matter of Gorman v. Town Bd. of Town of E. Hampton, 273 A.D.2d 235, 709 N.Y.S.2d 433;  see also, Matter of Center Sq. Assn. v. Board of Bldg., Zoning and Hous. Appeals of City of Albany, 195 A.D.2d 684, 599 N.Y.S.2d 897).   The subject project is substantially complete.   If the petitioner prevailed under these circumstances, the prejudice to the respondent Martin's Foods of South Burlington, Inc., would be substantial (cf., Michalak v. ZBA of Town of Pomfret, 286 A.D.2d 906, 731 N.Y.S.2d 129).

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