Opinion
592 CA 20-00707
08-26-2021
In the Matter of COR VAN RENSSELAER STREET COMPANY, III, INC., Petitioner-Respondent, v. NEW YORK STATE URBAN DEVELOPMENT CORPORATION, Doing Business as Empire State Development, Respondent-Appellant.
GOLDBERG SEGALLA LLP, BUFFALO (KRISTIN KLEIN WHEATON OF COUNSEL), FOR RESPONDENT-APPELLANT. CULLEN AND DYKMAN LLP, ALBANY (CHRISTOPHER E. BUCKEY OF COUNSEL), FOR PETITIONER-RESPONDENT.
GOLDBERG SEGALLA LLP, BUFFALO (KRISTIN KLEIN WHEATON OF COUNSEL), FOR RESPONDENT-APPELLANT.
CULLEN AND DYKMAN LLP, ALBANY (CHRISTOPHER E. BUCKEY OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal is unanimously dismissed without costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking several items of relief, including an order compelling respondent to present petitioner's grant application to respondent's Board of Directors for approval and compelling the Board of Directors to approve the application. Respondent now appeals from an order that, inter alia, granted the first item of relief and denied the second item of relief without prejudice as unripe for determination.
No appeal lies as of right from a nonfinal order in a CPLR article 78 proceeding (see CPLR 5701 [b] [1] ; Matter of Green v. Monroe County Child Support Enforcement Unit , 111 A.D.3d 1446, 1447, 975 N.Y.S.2d 323 [4th Dept. 2013] ). Here, the order is nonfinal because Supreme Court did not dismiss those parts of the petition that it declined to grant, but rather denied them without prejudice (see Matter of Grosso v. Slade , 179 A.D.2d 585, 585-586, 580 N.Y.S.2d 648 [1st Dept. 1992] ; cf. Matter of Roesch v. State of New York , 187 A.D.3d 1651, 1651-1652, 131 N.Y.S.3d 772 [4th Dept. 2020] ). Contrary to respondent's contention, although a determination that remits a matter for purely ministerial action is appealable as of right (see Valentin v. New York City Police Pension Fund , 16 A.D.3d 145, 146, 792 N.Y.S.2d 22 [1st Dept. 2005] ), here the court directed respondent to submit petitioner's grant application for a determination by respondent's Board of Directors, not for a " ‘purely ministerial’ " action ( Matter of Mid-Is. Hosp. v. Wyman , 15 N.Y.2d 374, 379, 259 N.Y.S.2d 138, 207 N.E.2d 187 [1965] ; cf. Valentin , 16 A.D.3d at 146, 792 N.Y.S.2d 22 ). Although we have the power to treat the notice of appeal as an application for permission to appeal, we decline to do so here, and we therefore dismiss the appeal (see Green , 111 A.D.3d at 1447, 975 N.Y.S.2d 323 ).