| Matter of Kar-McVeigh, LLC v Zoning Bd. of Appeals of Town ofRiverhead |
| 2012 NY Slip Op 02104 [93 AD3d 799] |
| March 20, 2012 |
| Appellate Division, Second Department |
| In the Matter of Kar-McVeigh, LLC, Respondent, v ZoningBoard of Appeals of Town of Riverhead el al., Appellants. |
—[*1] Ciarelli & Dempsey, Riverhead, N.Y. (John L. Ciarelli of counsel), for respondent.
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the ZoningBoard of Appeals of the Town of Riverhead dated August 27, 2009, which, after a hearing,dismissed the petitioner/plaintiff's application for an interpretation of a zoning ordinance and toreview determinations of the Director of Planning of the Town of Riverhead that the constructionof a temporary tent and barn for use as catering facilities on the petitioner/plaintiff's propertyconstituted a physical extension of a legal preexisting nonconforming use that required a specialpermit, and action, among other things, to recover damages for a violation of constitutional rightsunder color of state law and for a judgment declaring that the construction of the proposedtemporary tent and barn for use as catering facilities does not constitute a physical extension of alegal preexisting nonconforming use, the respondents/defendants appeal, as limited by their brief,from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated September7, 2010, as denied their motion pursuant to CPLR 7804 (f) and 3211 (a) (7) to dismiss thepetition/complaint.
Ordered that on the Court's own motion, the notice of appeal is deemed to be an applicationfor leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
On a motion to dismiss pursuant to CPLR 7804 (f) and 3211 (a) (7), all of the allegations inthe petition/complaint are deemed true and the petitioner/plaintiff is afforded the benefit of everyfavorable inference (see Matter of Millerv Mulligan, 73 AD3d 781, 783 [2010]; Matter of Bloodgood v Town of Huntington, 58 AD3d 619, 621[2009]). Here, the appellants did not and do not argue that an objection in point of law constitutesa defense to the petition, or that the causes of action for a declaratory judgment and to recoverdamages failed to state a cause of action. Instead, the appellants' contentions in the SupremeCourt only addressed the merits of the petition/complaint. [*2]Moreover, the Supreme Court correctly determined that theallegations in the petition/complaint fit within cognizable legal theories (see Leon vMartinez, 84 NY2d 83, 87-88 [1994]).
Accordingly, the appellants' motion pursuant to CPLR 7804 (f) and 3211 (a) (7) to dismissthe petition/complaint was properly denied. Skelos, J.P., Dickerson, Belen and Miller, JJ.,concur.