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Kahn v. Planning Board of City of Buffalo

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


March 27, 2009

IN THE MATTER OF ARNOLD KAHN, INDIVIDUALLY AND AS PRESIDENT OF PARK LANE CONDOMINIUM, PETITIONER-APPELLANT,
v.
PLANNING BOARD OF CITY OF BUFFALO AND UNILAND DEVELOPMENT COMPANY, RESPONDENTS-RESPONDENTS.

Appeal from a judgment of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered February 21, 2008 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., HURLBUTT, PERADOTTO, GREEN, AND GORSKI, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum

Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination approving the site plan for the construction of a residential tower by respondent Uniland Development Company. The record establishes that petitioner did not argue to respondent Planning Board of City of Buffalo that it violated article 8 of the Environmental Conservation Law in failing to refer the project to the City of Buffalo Environmental Management Commission, as required by the Code of the City of Buffalo. Thus, that contention was not properly before Supreme Court, nor is it properly before us. "[I]n a CPLR article 78 proceeding, the [c]court's review is limited to the arguments and record adduced before the agency" (Matter of Kaufman v Incorporated Vil. of Kings Point, 52 AD3d 604, 607; see also Matter of O'Donnell v Town of Schoharie, 291 AD2d 739, 741-742; Matter of Forjone v Bove, 280 AD2d 948).

We reject petitioner's remaining contentions and otherwise affirm for reasons stated in the decision at Supreme Court.

20090327

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