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Vinrus Corp. v. Village of Pelham Manor Building Inspector

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


October 6, 2009

IN THE MATTER OF VINRUS CORP., APPELLANT,
v.
VILLAGE OF PELHAM MANOR BUILDING INSPECTOR, ETC., RESPONDENT.

In a proceeding, inter alia, pursuant to CPLR article 78 in the nature of mandamus to compel the issuance of a certificate of occupancy, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Cacace, J.), entered January 28, 2009, which, upon an order of the same court entered December 23, 2008, granting the respondent's motion pursuant to CPLR 3211 and 7804(f) to dismiss the petition, in effect, dismissed the proceeding.

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.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, HOWARD MILLER and LEONARD B. AUSTIN, JJ.

(Index No. 21236/08)

DECISION & ORDER

ORDERED that the judgment is affirmed, with costs.

We affirm the judgment on the ground that the petitioner failed to exhaust its administrative remedies before commencing this proceeding (see Village Law § 7-712-a[5][b]; Matter of White v Incorporated Vil. of Plandome Manor, 190 AD2d 854; see also Matter of Capitol Distribs. Corp. v Jones, 2 Misc 2d 816, 817; cf. Matter of Goldberg v Incorporated Vil. of Roslyn Estates, 61 AD3d 756).

The parties' remaining contentions need not be reached in light of our determination.

RIVERA, J.P., FLORIO, MILLER and AUSTIN, JJ., concur.

20091006

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