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In the Matter of Ecogen Wind LLC and Ecogen Transmission Corp., Petitioners-Respondents-Appellants v. Town of Italy Town Board

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


May 3, 2013

IN THE MATTER OF ECOGEN WIND LLC AND ECOGEN TRANSMISSION CORP., PETITIONERS-RESPONDENTS-APPELLANTS,
v.
TOWN OF ITALY TOWN BOARD, CONSISTING OF MARGARET DUNN, IN HER CAPACITY AS ITALY TOWN SUPERVISOR AND MEMBER OF
TOWN BOARD, AND AMANDA GORTON, TIMOTHY KINTON, CHARLES KREUZER, MALCOLM IAN MACKENZIE, IN THEIR OFFICIAL CAPACITIES AS
MEMBERS OF TOWN BOARD, TOWN OF ITALY, RESPONDENTS-APPELLANTS-RESPONDENTS, ET AL., RESPONDENTS, AND FINGER LAKES
PRESERVATION ASSOCIATION, INTERVENOR-RESPONDENT.

Appeal and cross appeal from a judgment (denominated Decision and Order on Reserved Issues) of the Supreme Court, Yates County (John J. Ark, J.), entered June 11, 2012 in a proceeding pursuant to CPLR article 78. The judgment, inter alia, granted in part the application of petitioners for a special use permit to construct and operate a wind energy facility in respondent Town of Italy.

Matter of Ecogen Wind LLC v Town of Italy Town Bd.

Appellate Division, Fourth Department

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.

Released on May 3, 2013

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND WHALEN, JJ.

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

Memorandum: In this CPLR article 78 proceeding, respondents-appellants appeal and petitioners cross-appeal from an order entered February 24, 2012 that, inter alia, granted in part petitioners' application for a special use permit to construct and operate a wind energy facility in respondent Town of Italy, New York, and reserved decision on certain issues. Thereafter, Supreme Court decided the reserved issues in a judgment (denominated Decision and Order on Reserved Issues), which we deem to be the final judgment. Where, as here, the prior order is subsumed within the final judgment, the appeal is properly taken from the judgment (see Chase Manhattan Bank, N.A. v Roberts & Roberts, 63 AD2d 566, 567). Nevertheless, we exercise our discretion to treat the notices of appeal and cross appeal as valid, and we deem the appeal and cross appeal as taken from the judgment (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988, 988; see also CPLR 5520 [c]).

We affirm the judgment for reasons stated in the decision and order at Supreme Court entered February 24, 2012.

Entered: May 3, 2013 Frances E. Cafarell Clerk of the Court

20130503

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