Opinion
October 21, 1991
Appeal from the Supreme Court, Westchester County (Silverman, J.).
Ordered that the appeal from the order entered October 13, 1989, is dismissed, without costs or disbursements, as that order was superseded by the order entered November 16, 1989, made upon reargument; and it is further,
Ordered that the order entered November 16, 1989, is affirmed insofar as appealed from and reviewed, without costs or disbursements.
In this proceeding, the petitioner seeks to review a determination of the Board of Architectural Review of the City of Rye (hereafter, the Board) denying its application for a certificate of appropriateness for a subdivision. It is undisputed that the petitioner did not exhaust its administrative remedies (see, Rye City Code § 117-6 [C] [3]). There exists, however, an exception to the exhaustion doctrine where one has raised claims that an agency's action was unconstitutional or wholly beyond its grant of power (see, Watergate II Apts. v Buffalo Sewer Auth., 46 N.Y.2d 52, 57; see also, Young Men's Christian Assn. v. Rochester Pure Waters Dist., 37 N.Y.2d 371, 375-376).
Given the petitioner's attempted reliance on this exception to the exhaustion doctrine, the narrow issue before us on both of these appeals is the propriety of the court's reserving decision on the motion to dismiss the proceeding on exhaustion grounds and ordering a trial on the question of the existence of a proper constitutional claim. The instant constitutional claim did not hinge upon factual issues reviewable by the Board (cf., Matter of Dozier v. New York City, 130 A.D.2d 128, 135; Matter of Fichera v. City of New York, 145 A.D.2d 482, 484). Hence, a trial of that claim (see, CPLR 7804 [h]) was appropriate under the circumstances herein, and the motion to dismiss cannot be determined until the validity of that claim is resolved. Thompson, J.P., Kunzeman, Miller and Copertino, JJ., concur.