Opinion
March 29, 1971
In a proceeding pursuant to article 78 of the CPLR to compel the Presiding Supervisors of the Towns of Smithtown and Islip (1) to give notice of a hearing to be held upon a certain petition for the incorporation of Hauppauge as a village and (2) to hold such hearing (Village Law, §§ 3-300 — 3-306), or for alternative relief, the Presiding Supervisor of the Town of Smithtown appeals from a judgment of the Supreme Court, Suffolk County, entered December 9, 1970, which (a) granted petitioners' application to withdraw the proceeding as against appellant, without costs and without prejudice; (b) granted petitioners' application to withdraw the proceeding as against the nonappealing Presiding Supervisor, except for the alternative relief sought in the petition herein, without costs and without prejudice; (c) directed the nonappealing Presiding Supervisor to return to petitioners all papers filed with the Town of Islip in connection with the proposed incorporation, together with the $100 filing fee paid to that town; and (d) denied as academic appellant's cross motion to dismiss the petition herein on the grounds of lack of jurisdiction and failure to state a cause of action. Appeal dismissed insofar as it is from the determinations in the judgment with respect to the Presiding Supervisor of the Town of Islip, without costs. Appellant is not aggrieved by those determinations and therefore has no standing to appeal therefrom (CPLR 5511). Judgment affirmed in all other respects, without costs. No opinion. Rabin, P.J., Munder, Martuscello, Shapiro and Gulotta, JJ., concur.