C L & F Development, LLC v. Weiss

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 [1575] reverse the judgment and dismiss the petition. Present—Smith, J.P., Lunn, Fahey, Pine and Gorski, JJ.