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

1260
OP 13-00924
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF MARY SICOLI, AS EXECUTRIX
OF THE ESTATE OF BENJAMIN M. SICOLI, DECEASED,
AND ANGELO MASSARO, AS TRUSTEE OF THE
TESTAMENTARY TRUST UNDER THE WILL OF BENJAMIN M.
SICOLI, DECEASED, PETITIONERS,

                    V                              MEMORANDUM AND ORDER

TOWN OF LEWISTON, RESPONDENT.


BLAIR & ROACH, LLP, TONAWANDA (J. MICHAEL LENNON OF COUNSEL), FOR
PETITIONERS.

MICHAEL J. DOWD, LEWISTON, FOR RESPONDENT.


     Proceeding pursuant to EDPL 207 (initiated in the Appellate
Division of the Supreme Court in the Fourth Judicial Department) to
annul a determination of respondent to condemn certain real property
by eminent domain.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: Petitioners commenced this proceeding pursuant to
EDPL 207, seeking judicial review of respondent’s determination to
condemn certain real property, owned in part by petitioners, for the
alleged purpose of completing the dedication of a public road. As a
preliminary matter, we note that, pursuant to EDPL 207 (C), our review
is limited to “whether (1) the proceeding was constitutionally sound;
(2) the condemnor had the requisite authority; (3) its determination
complied with SEQRA and EDPL article 2; and (4) the acquisition will
serve a public use” (Matter of City of New York [Grand Lafayette
Props. LLC], 6 NY3d 540, 546; see Matter of Pfohl v Village of Sylvan
Beach, 26 AD3d 820, 820). Petitioners, as the parties challenging the
condemnation, bear the “burden of establishing that the determination
was without foundation and baseless (see Matter of Waldo’s Inc. v
Village of Johnson City, 74 NY2d 718, 720), or that it was violative
of any of the applicable statutory criteria” (Broadway Schenectady
Entertainment v County of Schenectady, 288 AD2d 672, 673; see Matter
of Dudley v Town Bd. of Town of Prattsburgh, 59 AD3d 1103, 1104;
Pfohl, 26 AD3d at 820-821).

     Here, we conclude that petitioners have failed to meet their
burden. Petitioners contend, inter alia, that the proposed taking
                                 -2-                          1260
                                                         OP 13-00924

served no valid, nonpretextual public purpose. We reject that
contention. “[I]t is generally accepted that the condemnor has broad
discretion in deciding what land is necessary to fulfill [a public]
purpose” (Matter of Rafferty v Town of Colonie, 300 AD2d 719, 723; see
Matter of Doyle v Schuylerville Cent. School Dist., 35 AD3d 1058,
1059, lv denied 9 NY3d 804, rearg denied 9 NY3d 939; Matter of
Gyrodyne Co. of Am., Inc. v State Univ. of N.Y. at Stony Brook, 17
AD3d 675, 676, lv denied 5 NY3d 716). Contrary to petitioners’
contention, we conclude that respondent did not abuse or improvidently
exercise its discretion in determining that “a public use, benefit or
purpose will be served by the proposed acquisition” (EDPL 207 [C]
[4]).

     Finally, we reject petitioners’ contention that the proceeding
was constitutionally unsound. Petitioners adduced no evidence “to
support a finding that [they] have ‘been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment’ ” (Matter of Gray v
Town of Oppenheim, 289 AD2d 743, 745, lv denied 98 NY2d 606, quoting
Village of Willowbrook v Olech, 528 US 562, 564). We therefore
conclude that respondent did not violate petitioners’ equal protection
rights, and thus “the proceeding was in conformity with the federal
and state constitutions” (EDPL 207 [C] [1]). Consequently, we confirm
the determination and dismiss the petition.




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
