Strobel v. New York State Department of Environmental Conservation

Appeal from a judgment of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered June 1, 2012 in a CPLR article 78 proceeding. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners commenced this CPLR article 78 proceeding alleging, inter alia, that respondents acted in an arbitrary and capricious manner in issuing a permit for and undertaking the construction of a spillway at a freshwater pond in the Town of Clarence (respondent). Inasmuch as respondent moved to dismiss the petition pursuant to CPLR 3211 (a) (1), and a special proceeding may be summarily determined “upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised” (CPLR 409 [b]; see CPLR 7804 [a]; Matter of Barreca v DeSantis, 226 AD2d 1085 , 1086 [1996]), we reject petitioners’ contention that Supreme Court’s consideration was limited to the issue whether the petition contained a cognizable legal theory (see CPLR 7804 [f]; Matter of Conners v Town of Colonie, 108 AD3d 837 , 839 [2013]). We further conclude that the court properly determined that none of