Opinion
2002-04716 c/w 2002-05690
Argued April 10, 2003.
May 5, 2003.
In a proceeding pursuant to CPLR article 78 to review a determination of the Planning Board of the Town of Islip, dated June 29, 2001, which, after a hearing, denied the petitioners' application for site plan approval of a proposed transfer station/recycling center and for an area variance, the petitioners appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Emerson, J.), dated March 25, 2002, as denied the petition and dismissed the proceeding, and (2) from a judgment of the same court, dated June 4, 2002, entered upon the order.
Pachman, Pachman Eldridge, P.C., Commack, N.Y. (Matthew E. Pachman of counsel), for appellants.
Vincent J. Messina, Jr., Town Attorney, Islip, N.Y. (Janice Shea of counsel), for respondents.
Before: ANITA R. FLORIO, J.P. HOWARD MILLER, THOMAS A. ADAMS, and REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondents.
The appeal from the intermediate order must be dismissed because no appeal lies as of right from a nonfinal order in a proceeding pursuant to CPLR article 78 (see CPLR 5701[b]), and in any event, any right of direct appeal therefrom terminated with entry of judgment in the proceeding (see Matter of Aho, 30 N.Y.2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).
The denial by the Planning Board of the Town of Islip of the application for site plan approval and an area variance was rationally based on substantial evidence found in the record where approval of the site plan would have required a variance from Islip Town Code § 21-13(I)(3). That provision requires that a transfer station be located a distance of at least 200 feet from property zoned for residential use, and the appellants were aware of the requisite Town Code provisions before they purchased the property (see Ifrah v. Utschig, 98 N.Y.2d 304; Ron Rose Group v. Baum, 275 A.D.2d 373; Vivest Bldg. Corp. v. Auwarter, 152 A.D.2d 582).
FLORIO, J.P., H. MILLER, ADAMS and RIVERA, JJ., concur.