STROBEL, GERALD v. NEW YORK STATE DEPARTMENT OF, ENVIRONMENTAL CONVERSATIO

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

1148 CA 13-00572 PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ.

IN THE MATTER OF GERALD STROBEL, FAITH STROBEL, JAMES COLLINS, PATRICIA COLLINS, FREDERICK MINTER AND BARBARA MINTER, PETITIONERS-APPELLANTS,

V MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, TOWN OF CLARENCE, ERIE COUNTY DEPARTMENT OF HEALTH, JAMES BUONO AND KELLI BUONO, RESPONDENTS-RESPONDENTS.

BLAIR & ROACH, LLP, TONAWANDA (DAVID L. ROACH OF COUNSEL), FOR PETITIONERS-APPELLANTS.

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), we reject petitioners’ contention that Supreme

-2- 1148 CA 13-00572

Court’s consideration was limited to the issue whether the petition contained a cognizable legal theory (see CPLR 7804 [f]; Matter of Conners v Town of Colonie, 108 AD3d 837, 839). 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).

Entered: November 15, 2013 Frances E. Cafarell Clerk of the Court