Opinion
No. 72 CA 22-01716
02-09-2024
IN THE MATTER OF TODD TICKNER, AS TRUSTEE OF THE DONALD R. TICKNER FAMILY WEALTH TRUST, PETITIONER-PLAINTIFF-APPELLANT, v. TOWN OF PERINTON, TOWN OF PERINTON ZONING BOARD OF APPEALS, MICHAEL DOSER, MPA, IN HIS CAPACITY AS TOWN OF PERINTON DIRECTOR OF PLANNING, LOCK 32 BREWING COMPANY, LLC, DOING BUSINESS AS SEVEN STORY BREWING, BOARDWALK DESIGN, INC., CANAL HOUSE PROPERTIES, LLC, RESPONDENTS-DEFENDANTS-RESPONDENTS, ET AL., RESPONDENTS-DEFENDANTS.
KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR PETITIONER-PLAINTIFF-APPELLANT. JOSEPH H. LAFAY, TOWN ATTORNEY, FAIRPORT, FOR RESPONDENTS-DEFENDANTS-RESPONDENTS TOWN OF PERINTON, TOWN OF PERINTON ZONING BOARD OF APPEALS, AND MICHAEL DOSER, MPA, IN HIS CAPACITY AS TOWN OF PERINTON DIRECTOR OF PLANNING. REFERMAT & DANIEL PLLC, ROCHESTER (JOHN T. REFERMAT OF COUNSEL), FOR RESPONDENTS-DEFENDANTS-RESPONDENTS BOARDWALK DESIGN, INC., AND CANAL HOUSE PROPERTIES, LLC.
KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR PETITIONER-PLAINTIFF-APPELLANT.
JOSEPH H. LAFAY, TOWN ATTORNEY, FAIRPORT, FOR RESPONDENTS-DEFENDANTS-RESPONDENTS TOWN OF PERINTON, TOWN OF PERINTON ZONING BOARD OF APPEALS, AND MICHAEL DOSER, MPA, IN HIS CAPACITY AS TOWN OF PERINTON DIRECTOR OF PLANNING.
REFERMAT & DANIEL PLLC, ROCHESTER (JOHN T. REFERMAT OF COUNSEL), FOR RESPONDENTS-DEFENDANTS-RESPONDENTS BOARDWALK DESIGN, INC., AND CANAL HOUSE PROPERTIES, LLC.
PRESENT: WHALEN, P.J., BANNISTER, GREENWOOD, AND KEANE, JJ.
Appeal from a judgment (denominated order and judgment) of the Supreme Court, Monroe County (Gail Donofrio, J.), entered September 22, 2022, in a proceeding pursuant to CPLR article 78 and declaratory judgment action. The judgment dismissed the petition-complaint.
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: In this hybrid CPLR article 78 proceeding and declaratory judgment action, petitioner-plaintiff (petitioner) appeals from a judgment dismissing his petition-complaint, which sought, inter alia, to annul the determination of respondent-defendant Michael Doser, MPA, in his capacity as Director of Planning for respondent-defendant Town of Perinton, that a brewery operating on the premises at issue did not violate the Zoning Law of the Town of Perinton (zoning code).
We dismiss the appeal as moot. It is well settled that "an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment" (Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707, 714 [1980]; see Matter of Brooks v Palmieri, 187 A.D.3d 1680, 1681 [4th Dept 2020]). Here, it is undisputed that the brewery that petitioner alleges violated the zoning code is no longer in operation and has vacated the premises. Thus, adjudication of the merits will not "result in immediate and practical consequences to the parties" (Coleman v Daines, 19 N.Y.3d 1087, 1090 [2012]; see generally Matter of Gilbert v Endres, 34 A.D.3d 1218, 1218 [4th Dept 2006]; Guziec v Woods, 171 A.D.2d 1082, 1082 [4th Dept 1991]). Contrary to petitioner's contention, we conclude that the exception to the mootness doctrine does not apply in this case (see Hearst Corp., 50 N.Y.2d at 714-715; see generally Matter of Gannett Co., Inc. v Doran, 74 A.D.3d 1788, 1789 [4th Dept 2010]).