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In the Matter of Pastor Keith H. Scott, Sr., et al v. City of Buffalo

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


November 13, 2009

IN THE MATTER OF PASTOR KEITH H. SCOTT, SR., ET AL.,
PETITIONERS, DORA RICHARDSON, JOSEPHINE RUSH, JOHN MCKENDRY, AND SHELLEY MCKENDRY,
PETITIONERS-APPELLANTS,
v.
CITY OF BUFFALO, COMMON COUNCIL OF CITY OF BUFFALO, BYRON BROWN, IN HIS OFFICIAL CAPACITY AS MAYOR OF CITY OF BUFFALO, CITY OF BUFFALO DEPARTMENT OF PUBLIC WORKS, DEPARTMENT OF ECONOMIC DEVELOPMENT PERMITS AND INSPECTION, BUFFALO SEWER AUTHORITY AND BUFFALO MUNICIPAL WATER FINANCE AUTHORITY,
RESPONDENTS-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.

1309

PRESENT: HURLBUTT, J.P., CENTRA, PERADOTTO, AND GORSKI, JJ.

MEMORANDUM AND ORDER

The judgment dismissed the second amended petition.

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]). 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). 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 (Matter of Scott v City of Buffalo, 38 AD3d 1287).

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, appeal dismissed 89 NY2d 860, lv denied 89 NY2d 811).

Patricia L. Morgan Clerk of the Court

20091113

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