| Matter of Strobel v New York State Dept. of Envtl. Conservation |
| 2013 NY Slip Op 07610 [111 AD3d 1402] |
| November 15, 2013 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Gerald Strobel et al.,
Appellants, v New York State Department of Environmental Conservation et al., Respondents. |
—[*1]
Eric T. Schneiderman, Attorney General, Buffalo (Timothy Hoffman of counsel), for
respondent-respondent New York State Department of Environmental Conservation.
Bennett, Difilippo & Kurtzhalts, LLP, Holland (Ronald P. Bennett of counsel), for
respondent-respondent Town of Clarence.
Michael A. Siragusa, County Attorney, Buffalo (Kenneth R. Kirby of counsel), for
respondent-respondent Erie County Department of Health.
Myers, Quinn & Schwartz, LLP, Williamsville (James I. Myers of counsel), for
respondents-respondents James Buono and Kelli Buono.
Appeal from a judgment of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered June 1, 2012 in a CPLR article 78 proceeding. The judgment dismissed the petition.
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 AD2d 1085, 1086 [1996]), we reject petitioners' contention that Supreme Court's consideration was limited to the issue whether the petition contained a [*2]cognizable legal theory (see CPLR 7804 [f]; Matter of Conners v Town of Colonie, 108 AD3d 837, 839 [2013]). We further conclude that the court properly determined that none of petitioners' causes of action has merit (see generally Held v Kaufman, 91 NY2d 425, 430-431 [1998]). Present—Centra, J.P., Fahey, Carni, Sconiers and Valentino, JJ.