| Matter of Lucas v Village of Mamaroneck |
| 2008 NY Slip Op 10004 [57 AD3d 786] |
| December 16, 2008 |
| Appellate Division, Second Department |
| In the Matter of Nora Lucas et al., Appellants, et al.,Petitioners, v Village of Mamaroneck et al., Respondents. |
—[*1] Callahan & Fusco, LLC, New York, N.Y. (Christopher G. Fusco of counsel), for respondentVillage of Mamaroneck. Frank A. Acocella, Yonkers, N.Y., for respondents Paul Ferrante and Rosa Acocella. Lawrence R. Mulligan, Scarsdale, N.Y., for respondent Benmar Properties, LLC.
In a proceeding pursuant to CPLR article 78, inter alia, (1) to review a determination of theDirector of Building of Village of Mamaroneck dated July 6, 2007, granting a building permitauthorizing the construction of a single-family home by Benmar Properties, LLC, and (2), in effect, tocompel the Village of Mamaroneck to make a threshold determination as to whether the issuance of thebuilding permit is a Type I, Type II, or Unlisted Action within the meaning of the regulationsimplementing the State Environmental Quality Review Act (ECL art 8), the petitioners Nora Lucas,Anthony Weiner, Jeffrey Falk, Martha Falk, Stuart Tiekert, and Robert Balin appeal, as limited by theirbrief, from so much of an order and judgment (one paper) of the Supreme Court, Westchester County(Cohen, J.), entered October 23, 2007, as denied the petition and dismissed the proceeding.
Ordered that the order and judgment is modified, on the law, by deleting the provision thereofdenying that branch of the petition which was, in effect, to compel the Village of Mamaroneck to makea threshold determination as to whether the issuance of the building permit is a Type I, Type II, orUnlisted Action within the meaning of the regulations implementing the State Environmental QualityReview Act, and substituting therefor a provision granting that branch of the petition and remitting thematter to the Village of Mamaroneck for such a determination by the [*2]appropriate lead agency; as so modified, the order and judgment isaffirmed insofar as appealed from, without costs or disbursements.
The petitioners alleged that the Director of Building of Village of Mamaroneck (hereinafter theDirector) improperly granted a building permit to Benmar Properties, LLC. The Supreme Courtproperly denied that branch of the petition which was to annul the Director's determination on theground that the petitioners failed to exhaust their administrative remedies. The petitioners were requiredto challenge the issuance of the building permit before the Village's Zoning Board of Appeals prior tocommencing this proceeding (see Matter of Levine v Town of Clarkstown, 307 AD2d 997,999 [2003]; Sabatini v Incorporated Vil. of Kensington, 284 AD2d 320 [2001]).
However, the Supreme Court erred in denying that branch of the petition which was, in effect, tocompel the Village of Mamaroneck to make a threshold determination under SEQRA as to whether theissuance of the building permit is a Type I, Type II, or Unlisted Action within the meaning of theregulations implementing the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA).Inasmuch as there has yet to be a determination as to whether, pursuant to SEQRA, the subject actionis properly categorized as Type I (see 6 NYCRR 617.4), Type II (see 6 NYCRR617.5), or Unlisted (see 6 NYCRR 617.2 [ak]), that branch of the petition should have beengranted and the matter remitted to the Village for such a determination by the appropriate lead agency,either the Village Planning Board, Zoning Board of Appeals, or the Village Board of Trustees.
The parties' remaining contentions are without merit.
Cross motion by Benmar Properties, LLC, inter alia, to dismiss an appeal from an order andjudgment (one paper) entered October 23, 2007, on the ground that the appeal and the underlyingproceeding have been rendered academic. Separate motion by Paul Ferrante and Rosa Acocella, interalia, to dismiss the appeal from the same order and judgment. By decisions and orders on motions ofthis Court dated January 8, 2008 [2008 NY Slip Op 60458(U)], and March 31, 2008 [2008 NY SlipOp 68051(U)], respectively, that branch of the cross motion of Benmar Properties, LLC, which was todismiss the appeal and that branch of the separate motion of Paul Ferrante and Rosa Acocella whichwas to dismiss the appeal were held in abeyance and referred to the panel of Justices hearing theappeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the cross motion and the separate motion, the papers filed[*3]in opposition or relation thereto, and upon the argument of theappeal, it is
Ordered that the branch of the cross motion and the branch of the separate motion which were todismiss the appeal are denied. Spolzino, J.P., Ritter, Santucci and Carni, JJ., concur.