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In re Scott

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


November 13, 2009

IN THE MATTER OF KEITH H. SCOTT, SR., ET AL., PETITIONERS, AND DORA RICHARDSON ET AL., APPELLANTS,
v.
CITY OF BUFFALO ET AL., RESPONDENTS.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Joseph G. Makowski, J.), entered July 7, 2008 in a CPLR article 78 proceeding. The judgment dismissed the second amended petition.

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

As corrected through Wednesday, January 6, 2010

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

Memorandum

We affirm for reasons stated in the decision at Supreme Court (Scott v City of Buffalo, 20 Misc 3d 1135[A], 2008 NY Slip Op 51738[U] [2008]). We write only to note that the contentions of petitioners concerning Executive Law § 12 and the constitutionality of a transfer of property between respondent City of Buffalo and the Seneca Nation of Indians are raised for the first time on appeal, and we therefore do not consider them (see Ciesinski v Town of Aurora, 202 AD2d 984, 985 [1994]). We further note that, on a prior appeal before this Court, petitioners raised the issue now raised concerning the number of votes necessary to approve the transfer of property by respondent Common Council of the City of Buffalo, and we previously decided that issue (Scott v City of Buffalo, 38 AD3d 1287 [2007]). Our reconsideration of that issue on this appeal is thus foreclosed (see Mobil Oil Corp. v City of Syracuse Indus. Dev. Agency, 224 AD2d 15, 19 [1996], appeal dismissed 89 NY2d 860 [1996], lv denied 89 NY2d 811 [1997]).

Present---Hurlbutt, J.P., Centra, Peradotto and Gorski, JJ.

[See 20 Misc 3d 1135(A), 2008 NY Slip Op 51738(U).]

20091113

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