Opinion
Decided June 11, 1996
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, Donald G. Purple, Jr., J.
Brian C. Flynn, Hammondsport, for appellant.
Robert H. Plaskov, Bath, for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and the case remitted to that Court for consideration of issues raised but not considered on the appeal to that Court.
As this Court recently held in Matter of Gernatt Asphalt Prods. v Town of Sardinia ( 87 N.Y.2d 668), the Mined Land Reclamation Law does not preempt a municipality's authority, by means of its zoning powers, to regulate or prohibit the use of land within its municipal boundaries for mining operations. Thus, the Appellate Division improperly dismissed the complaint on that ground.
Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, with costs, and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.