SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
June 9, 1969
IN THE MATTER OF ANGELO PELLILLO, RESPONDENT,
JOSEPH F. FIORE, AS CLERK OF THE TOWN OF HARRISON, APPELLANT
In a proceeding pursuant to CPLR article 78, the Clerk of the Town of Harrison appeals from a judgment of the Supreme Court, Westchester County, dated August 22, 1968, which ordered him to issue a certificate of approval of a subdivision plat to petitioner in accordance with subdivision 4 of section 276 of the Town Law, based on the failure of the Planning Board of said town to take action on petitioner's plat within the time limitation of said section.
Beldock, P. J., Brennan, Benjamin, Munder and Martuscello, JJ., concur.
Petitioner filed a plat which he entitled "Preliminary of Site Map". When the Planning Board failed to take action within the time limitation of subdivision 4 of section 276 of the Town Law, petitioner brought this proceeding to compel the issuance of a certificate of approval pursuant thereto. The Special Term granted the relief requested by the petition. We are of the opinion that the judgment was erroneous because the plat as filed was not in final form and, accordingly, subdivision 4 of section 276 is not applicable. Furthermore, since the Planning Board has never been empowered to consider preliminary plats, subdivision 3 of section 276 of the Town Law is inapplicable.
Judgment reversed, on the law, with $10 costs and disbursements, and petition dismissed on the merits.
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