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

287
CA 12-01011
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND WHALEN, JJ.


IN THE MATTER OF ECOGEN WIND LLC AND ECOGEN
TRANSMISSION CORP.,
PETITIONERS-RESPONDENTS-APPELLANTS,

                    V                                MEMORANDUM AND ORDER

TOWN OF ITALY TOWN BOARD, CONSISTING OF
MARGARET DUNN, IN HER CAPACITY AS ITALY
TOWN SUPERVISOR AND MEMBER OF TOWN BOARD,
AND AMANDA GORTON, TIMOTHY KINTON, CHARLES
KREUZER, MALCOLM IAN MACKENZIE, IN THEIR
OFFICIAL CAPACITIES AS MEMBERS OF TOWN BOARD,
TOWN OF ITALY, RESPONDENTS-APPELLANTS-RESPONDENTS,
ET AL., RESPONDENTS,
AND FINGER LAKES PRESERVATION ASSOCIATION,
INTERVENOR-RESPONDENT.


GARY A. ABRAHAM, ALLEGANY, FOR RESPONDENTS-APPELLANTS-RESPONDENTS.

NIXON PEABODY LLP, BUFFALO (LAURIE STYKA BLOOM OF COUNSEL), FOR
PETITIONERS-RESPONDENTS-APPELLANTS.


     Appeal and cross appeal from a judgment (denominated Decision and
Order on Reserved Issues) of the Supreme Court, Yates County (John J.
Ark, J.), entered June 11, 2012 in a proceeding pursuant to CPLR
article 78. The judgment, inter alia, granted in part the application
of petitioners for a special use permit to construct and operate a
wind energy facility in respondent Town of Italy.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: In this CPLR article 78 proceeding, respondents-
appellants appeal and petitioners cross-appeal from an order entered
February 24, 2012 that, inter alia, granted in part petitioners’
application for a special use permit to construct and operate a wind
energy facility in respondent Town of Italy, New York, and reserved
decision on certain issues. Thereafter, Supreme Court decided the
reserved issues in a judgment (denominated Decision and Order on
Reserved Issues), which we deem to be the final judgment. Where, as
here, the prior order is subsumed within the final judgment, the
appeal is properly taken from the judgment (see Chase Manhattan Bank,
N.A. v Roberts & Roberts, 63 AD2d 566, 567). Nevertheless, we
exercise our discretion to treat the notices of appeal and cross
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                                                         CA 12-01011

appeal as valid, and we deem the appeal and cross appeal as taken from
the judgment (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988,
988; see also CPLR 5520 [c]).

     We affirm the judgment for reasons stated in the decision and
order at Supreme Court entered February 24, 2012.




Entered:   May 3, 2013                          Frances E. Cafarell
                                                Clerk of the Court
