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Lupoli v. Conservation Board of Southampton

267 A.D.2d 387 Court N.Y. App. Div. Decision date 1999-12-20 English

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p. 387
In the Matter of Annette Lupoli, Appellant, v Conservation Board of the Town of Southampton et al., Respondents.
[700 NYS2d 219]

—In a proceeding pursuant to CPLR article 78 to review determinations of the respondent Conservation Board of the Town of Southampton, dated February 5, 1997, and the respondent Town Board of the Town of Southampton, dated April 18, 1997, which denied the petition

p. 388
er’s application for a permit to construct a residence on property partially comprised of wetlands, the petitioner appeals from so much of an order and judgment (one paper) of the Supreme Court, Suffolk County (Underwood, J.), dated September 21, 1998, as (a) denied the petitioner’s cross motion, inter alia, pursuant to CPLR 7804 (e) for a more accurate record and (b) denied the petition and dismissed the proceeding.

Ordered that the order and judgment is affirmed, with costs.

As the papers and pleadings submitted to the court failed to demonstrate the existence of an issue of fact, the petitioner’s contention that the summary disposition by the Supreme Court was premature is without merit (see, Matter of Kellenberg Mem. High School v Section VIII of N. Y. State Pub. High School Athletic Assn., 255 AD2d 320 ; Matter of Fisch v Aiken, 252 AD2d 556 ; Matter of Bahar v Schwartzreich, 204 AD2d 441 ). The challenged resolutions by the respondents Conservation Board of the Town of Southampton and the Town Board of the Town of Southampton were not arbitrary, capricious, illegal, or discriminatory, and the petition was properly denied (see, Matter of Pell v Board of Educ., 34 NY2d 222 ; Matter of Green v Planning Bd., 220 AD2d 415 ; Matter of Koncelik v Planning Bd., 188 AD2d 469 ; Matter of Harwood v Board of Trustees, 176 AD2d 291 ).

The petitioner’s remaining contentions are without merit (see, Matter of Gazza v New York State Dept. of Envtl. Conservation, 89 NY2d 603 , cert denied 522 US 813 ; Matter of Brotherton v Department of Envtl. Conservation, 252 AD2d 498 ; Matter of Captain Kidd’s v New York State Liq. Auth., 248 AD2d 791 ). S. Miller, J. P., Altman, Schmidt and Smith, JJ., concur.

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