37 N.Y.2d 198 | NY | 1975
The present motion for leave to appeal from a nonfinal order may be entertained under CPLR 5602 (subd [a], par 2) if the Town Board here is a "body of public officers” within the meaning of that section. Depending on the procedural role of the municipal party in the cases before us, we have in the past determined that local municipalities and their governing boards do fall within the beneficial reach of that section. (E.g., Matter of Vanderveer v Van Rouwendaal, 35 NY2d 643; Matter of Long Is. Light. Co. v Ambro, 32 NY2d 610; Matter of Delaware Midland Corp. v Incorporated Vil. of Westhampton Beach, 30 NY2d 487; Matter of Seifried v Town of Clarkstown, 16 NY2d 485; Matter of Shell Oil Co. v Farrington, 14 NY2d 490.) Where the municipality’s procedural role has been different, however, we have concluded that it or the members of its governing boards are not public bodies for the purposes of the section. (E.g., Matter of Town of Bedford v Village of Mount Kisco, 27 NY2d 725; Matter of Incorporated Vil. of Hewlett Bay Park [Klein], 19 NY2d 747; Paliotto v Town of Islip, 16 NY2d 871; Matter of Incorporated Vil. of Hempstead [Fichter] 304 NY 870.)
Reconciliation of superficially inconsistent holdings in these cases is explained by reference to the legislative history of CPLR 5602 (subd [a], par 2). The section, conferring jurisdiction in our court to entertain appeals from nonfinal orders in a limited number of cases, replaced subdivision 2 of section
The procedural remedy fashioned to relieve the agency from this dilemma was to confer jurisdiction on our court to grant leave to appeal from any nonfinal determination of the Appellate Division affecting the action of an administrative agency. As is noted in Cohen and Karger, Powers of the New York Court of Appeals (§65, pp 293-294) however: "Plainly, the remedy goes far beyond the necessity.”
In interpreting CPLR 5602 (subd [a], par 2), and its predecessor subdivision 2 of section 589 of the Civil Practice Act, in proceedings wherein local municipalities and their governing boards were parties, we have considered such parties to be within the sweep of those sections only where the cases have fit within the curative intent underlying the sections. Thus, if
Because the Town Board in this instance was functioning as the adjudicatory body we hold that its role as such is sufficient predicate to invoke the provisions of CPLR 5602 (subd [a], par 2). Accordingly we entertain the present motion for leave to appeal.
We turn then to the merits of the motion. Petitioner sought a zoning permit pursuant to the Local Zoning Laws of the Town of Halfmoon. When no favorable response was forthcom
On consideration of the merits, however, we do not find warrant for granting leave. Accordingly the motion should be denied.
Motion for leave to appeal denied, with $20 costs and necessary reproduction disbursements.
It is worth observing, additionally, that CPLR 5602 (subd [a], par 2) accords the benefits of the section to every party to the proceeding if any one party comes within its ambit.