Home Depot USA, Inc. v. City of Rye , 684 N.Y.S.2d 908 ( 1999 )

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Mayor of the City of Rye, which refused to approve the petitioner’s application for a permit to widen a road, the City of Rye, Edward B. Dunn, as Mayor, and James K. Burke, Edward J. Collins, Carolyn Cunningham, Robert Hutchings, Joseph L. Latwin, and Kathleen Walsh, as Members of the City Council of the City of Rye, and George I. Mottarella, as City Engineer of the City of Rye, appeal (1) from a judgment of the Supreme Court, Westchester County (Cowhey, J.), entered February 2, 1998, and (2), as limited by their brief, from so much of an amended judgment of the same court, entered February 6, 1998, as granted the petition and annulled the determination.

Ordered that the appeal from the judgment entered February 2, 1998, is dismissed, as the judgment was superseded by the amended judgment; and it is further,

Ordered that the amended judgment is affirmed insofar as appealed from; and it is further,

Ordered that the petitioner is awarded one bill of costs.

Contrary to the appellants’ contention, the Supreme Court properly concluded that the determination of the Mayor of the City of Rye was arbitrary and capricious and without a rational basis (see, Matter of Pleasant Val. Home Constr. v Van Wagner, 41 NY2d 1028).

The appellants’ remaining contention is without merit.

We have not considered the argument of Anthony Landi that the court’s dismissal of the petition insofar as asserted against him should be affirmed. The petitioner did not cross-appeal from that portion of the court’s judgment and amended judgment, and consequently, that issue is not before us. Bracken, J. P., Thompson, Altman and Krausman, JJ., concur.