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

218
TP 11-01912
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, AND MARTOCHE, JJ.


IN THE MATTER OF CHRISTOPHER CAPPON, PETITIONER,

                    V                              MEMORANDUM AND ORDER

CARLOS CARBALLADA, IN HIS OFFICIAL CAPACITY AS
COMMISSIONER OF NEIGHBORHOOD AND BUSINESS
DEVELOPMENT OF CITY OF ROCHESTER AND CITY OF
ROCHESTER, RESPONDENTS.


SANTIAGO BURGER ANNECHINO LLP, ROCHESTER (MICHAEL A. BURGER OF
COUNSEL), FOR PETITIONER.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Monroe County [John J. Ark,
J.], entered September 12, 2011) to review a determination of
respondents. The determination convicted petitioner of violating the
Municipal Code of the City of Rochester.

     It is hereby ORDERED that the order is unanimously vacated
without costs and the matter is remitted to Supreme Court, Monroe
County, for further proceedings in accordance with the following
Memorandum: We agree with petitioner that Supreme Court erred in
transferring this CPLR article 78 proceeding to this Court pursuant to
CPLR 7804 (g) because, contrary to the court’s determination, the
petition does not raise a substantial evidence issue (see id.; Matter
of Burns v Carballada, 79 AD3d 1785), and under the circumstances we
decline to review the merits of the petition in the interest of
judicial economy (see Burns, 79 AD3d 1785; cf. Matter of Foster v
Aurelius Fire Dist., 90 AD3d 1585). In his petition, petitioner
sought to annul the determination that he violated the Municipal Code
of respondent City of Rochester (Code) on the grounds that his
conviction under the Code “violates his rights under the Fourth
Amendment of the United States Constitution and Article 1 section 12
of the New York Constitution; . . . unlawfully deprives [him] of the
beneficial enjoyment of his property and the right to derive income
therefrom; and . . . is therefore in violation of lawful procedure,
affected by an error of law and arbitrary and capricious.”
Furthermore, in his brief to this Court, petitioner stated that the
petition does not raise a substantial evidence issue. We thus
conclude that, under these circumstances, the proceeding should not
have been transferred to this Court.
Entered: March 16, 2012                         Frances E. Cafarell
                                                Clerk of the Court
