Opinion
34 CA 18–00013
02-08-2019
In the Matter of SEALAND WASTE LLC, Petitioner-Plaintiff–Appellant, v. TOWN OF CARROLL, Town of Carroll Zoning Board of Appeals, and Alan Gustafson, Code Enforcement Officer of Town of Carroll, Respondents-Defendants–Respondents. Carol L. Jones, Individually, and as Executor of the Estate of Donald J. Jones, Deceased, and Jones Carroll, Inc., Necessary or Interested Parties.
KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR PETITIONER–PLAINTIFF–APPELLANT. ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (PAUL V. WEBB, JR., OF COUNSEL), FOR RESPONDENTS–DEFENDANTS–RESPONDENTS.
KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR PETITIONER–PLAINTIFF–APPELLANT.
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (PAUL V. WEBB, JR., OF COUNSEL), FOR RESPONDENTS–DEFENDANTS–RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: In this hybrid CPLR article 78 proceeding and declaratory judgment action, petitioner-plaintiff appeals from a judgment that, in effect, denied and dismissed its petition-complaint seeking, inter alia, a declaration that respondent-defendant Town of Carroll's Local Law No. 1 of 2007 (2007 Law) is null and void. We affirm. "[W]here, as here, ‘there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211(a)(4) on the ground that there is another action pending’ " ( Matter of Goodyear v. New York State Dept. of Health, 163 A.D.3d 1427, 1430, 82 N.Y.S.3d 280 [4th Dept. 2018] ; see CPLR 7804[f] ). We conclude that Supreme Court did not abuse its discretion in dismissing the petition-complaint on that basis. Further, inasmuch as the 2007 Law has not been declared invalid, the court properly concluded that respondents-defendants did not act in an arbitrary and capricious manner in denying petitioner-plaintiff's application for certain permits on the ground that such permits related to a proposed expansion of a landfill that is not allowed pursuant to the 2007 Law. In light of our determination, we do not address petitioner-plaintiff's remaining contentions.