BATTAGLIA DEMOLITION v. CITY OF BUFFALO ( 2013 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
1305
CA 13-01063
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.
IN THE MATTER OF BATTAGLIA DEMOLITION, INC.,
BATTAGLIA TRUCKING, INC. AND PETER BATTAGLIA,
PETITIONERS-APPELLANTS,
V MEMORANDUM AND ORDER
CITY OF BUFFALO, CITY OF BUFFALO COMMON COUNCIL,
CITY OF BUFFALO DEPARTMENT OF ECONOMIC
DEVELOPMENT, PERMIT & INSPECTION SERVICES AND
PATRICK SOLE, JR., AS DIRECTOR OF PERMIT &
INSPECTION SERVICES, RESPONDENTS-RESPONDENTS.
JOSEPH F. GERVASE, JR., BUFFALO, FOR PETITIONERS-APPELLANTS.
TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (JOEL C. MOORE OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.
Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (Diane Y. Devlin, J.), entered March 19, 2013 in a
proceeding pursuant to CPLR article 78. The judgment granted the
motion of respondents to dismiss the petition.
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Memorandum: Petitioners commenced this CPLR article 78
proceeding seeking to annul the determination of respondent City of
Buffalo Common Council denying the application of petitioner Battaglia
Demolition, Inc. (Battaglia Demolition) for a transfer station license
(see Buffalo City Code § 263-27). They also sought a determination
that Battaglia Demolition does not require a transfer station license
in light of the fact that petitioners possess other licenses and
permits, and they sought to annul the determination of respondent
Patrick Sole, Jr., as director of permit and inspection services for
respondent City of Buffalo, denying the application of petitioner
Battaglia Trucking, Inc. for a collector license (see § 263-26). We
conclude that Supreme Court properly granted respondents’ motion to
dismiss the petition (see CPLR 7804 [f]). Contrary to petitioners’
contention, the determinations with respect to the applications were
neither “affected by an error of law [n]or . . . arbitrary and
capricious” (CPLR 7803 [3]). Petitioners’ request for a determination
that their possession of other licenses and permits obviates Battaglia
Demolition’s need for a transfer station license is not properly
sought in a CPLR article 78 proceeding, which may not be used to
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CA 13-01063
challenge the validity of a legislative act such as the Buffalo City
Code provision requiring Battaglia Demolition to obtain such a license
(see generally CPLR 7803; Matter of Save the Pine Bush v City of
Albany, 70 NY2d 193, 202). We note in any event that there is no
authority for petitioners’ position that multiple other licenses may
substitute for a transfer station license.
Entered: December 27, 2013 Frances E. Cafarell
Clerk of the Court