Opinion
September 29, 2000.
Appeal from Judgment of Supreme Court, Erie County, Mintz, J. — CPLR art 78.
PRESENT: PINE, J. P., WISNER, HURLBUTT, SCUDDER AND BALIO, JJ.
Judgment unanimously reversed on the law without costs, motion denied, petition reinstated and respondents directed to file and serve an answer within 20 days of service of a copy of the order of this Court with notice of entry.
Memorandum:
Petitioners commenced this CPLR article 78 proceeding alleging that respondent Town Board of Town of Clarence acted in an arbitrary and capricious manner in revoking a special exception use permit that had previously been issued to them. Supreme Court erred in granting respondents' motion to dismiss the petition for failure to state a cause of action pursuant to CPLR 3211 (a) (7). On such a motion, the facts alleged in the petition are deemed true and petitioners are "benefitted by the rule that every favorable inference must be afforded the facts alleged" in the petition ( Held v. Kaufman, 91 N.Y.2d 425, 432; see, Leon v. Martinez, 84 N.Y.2d 83, 87-88; Matter of Ostrowski v. County of Erie, 245 A.D.2d 1091, 1092). All that a court must determine is whether those facts and inferences "fit within any cognizable legal theory" ( Leon v. Martinez, supra, at 87-88; see, Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275). The allegation that a Town Board's decision to revoke or rescind a previously granted permit was arbitrary and capricious constitutes a cognizable legal theory ( see, Town of Orangetown v. Magee, 88 N.Y.2d 41, 47-48; see also, Matter of Gardner v. Town of Canandaigua Code Enforcement Officer, 261 A.D.2d 910, 911; Matter of Sievers v. City of New York, 182 A.D.2d 580).