Segalla v. Town of Amenia

Oct 6, 2003
Versions:309 A.D.2d 742
765 N.Y.S.2d 256

In an action, inter alia, for a judgment declaring that the plaintiffs have a valid, nonconforming use of a certain parcel of land for mining of natural aggregate materials, including quarrying, the plaintiffs appeal, as limited by their brief, from so much of an order and judgment (one paper) of the Supreme Court, Dutchess County (Dillon, J.), dated June 12, 2002, as granted the defendant’s motion to dismiss the complaint for failure to exhaust administrative remedies.

Ordered that the order and judgment is affirmed insofar as appealed from, with costs.

The Supreme Court properly determined that the plaintiffs’ failure to exhaust their administrative remedies or to establish that the pursuit of such remedies would have been futile required dismissal of the complaint (see Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52 [1978]; Town of Islip v Zalak, 165 AD2d 83, 94-97 [1991]; cf. 360 Jericho Turnpike Assoc. v Incorporated Vil. of Mineola, 261 AD2d 468 [1999]). Smith, J.P., Townes, Cozier and Mastro, JJ., concur.