Majority
p. 616In the Matter of Fox Meadows Realty & Development Corp., Appellant, v Kurt Gardener et al., Respondents. [619 NYS2d 296]
—In a proceeding pursuant to CPLR article 78 to compel the Town of Pleasant Valley to abandon a certain segment of a Town road to the petitioner, pursuant to Highway Law § 212-a, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), entered July 9, 1993, which dismissed the petition.
Ordered that the judgment is affirmed, with costs.
This is a proceeding to compel the Town to abandon a certain portion of a Town road to the petitioner, pursuant to Highway Law § 212-a. However, the language of the statute is
p. 617
permissive, not mandatory, and the petitioner has failed to demonstrate a clear legal right to the relief sought (see, Matter of Legal Aid Socy. v Scheinman, 53 NY2d 12 , 16; Klostermann v Cuomo, 61 NY2d 525 , 539). Accordingly, the petition was properly dismissed. Bracken, J. P., Lawrence, Friedmann and Goldstein, JJ., concur.
Cases cited
- Legal Aid Society of Sullivan County, Inc. v. Scheinman 53 NY2d 12 at 16 p. 617
- Klostermann v. Cuomo 61 NY2d 525 at 539 p. 617