        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
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                                                         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
