Camardo v. Michelman

Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered May 18, 2004 in a proceeding pursuant to CPLR article 78. The judgment declared that section 305-34 (B) (5) (c) of the Auburn City Code, as amended by Ordinance No. 1-2002, is vague, invalid and unenforceable. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the petition is dismissed. Memorandum: Petitioner appeals from a judgment (denominated order) in this CPLR article 78 proceeding that declared Auburn City Code § 305-34 (B) (5) (c) of the Auburn City Code to be vague, invalid and unenforceable. The petition must be dismissed because petitioner failed to exhaust his administrative remedies (see Matter of Hays v Walrath, 271 AD2d 744, 745 [2000]; Matter of Parisella v Zoning Bd. of Appeals of Town of Fishkill, 188 AD2d 712, 713 [1992], lv denied 82 NY2d 653 [1993]). We therefore reverse the judgment, grant the motion of respondent City of Auburn Planning Board to dismiss the petition and dismiss the petition. Present—Pigott, Jr., PJ., Green, Kehoe, Gorski and Hayes, JJ.