Matter of C L & F Dev., LLC v Weiss
2008 NY Slip Op 03856 [50 AD3d 1574]
April 25, 2008
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 18, 2008


In the Matter of C L & F Development, LLC, Respondent, v Elaine M. Weiss et al., Constituting the Planning Board of Town of Amherst, Appellants.

—[*1] E. Thomas Jones, Town Attorney, Williamsville (Alan P. McCracken of counsel), for respondents-appellants.

Harris Beach PLLC, Buffalo (Richard T. Sullivan of counsel), for petitioner-respondent.

Appeal from a judgment of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered June 12, 2007 in a proceeding pursuant to CPLR article 78. The judgment granted the petition.

It is hereby ordered that the judgment so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

Memorandum: Respondents appeal from a judgment that granted the petition in this CPLR article 78 proceeding. We agree with respondents, as asserted in their second affirmative defense, that the petition must be dismissed because petitioner failed to exhaust its administrative remedies (see Matter of Camardo v Michelman, 12 AD3d 1176 [2004]; see also Matter of Hays v Walrath, 271 AD2d 744, 745 [2000]; cf. Matter of Social Spirits v Town of Colonie, 74 AD2d 933 [1980]). We therefore reverse the judgment and dismiss the petition. Present—Smith, J.P., Lunn, Fahey, Pine and Gorski, JJ.