Wallberg v. Planning Bd. of Town of Pound Ridge

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before LAZER
• Citation: Wallberg v. Planning Bd. of Town of Pound Ridge, 495 N.Y.S.2d 731, 115 A.D.2d 539 (N.Y. App. Div. 1985)
• Decision Date: 09 December 1985
• Parties: Richard S. WALLBERG, Respondent, v. PLANNING BOARD OF the TOWN OF POUND RIDGE, Appellant.

Page 731

495 N.Y.S.2d 731

115 A.D.2d 539

Richard S. WALLBERG, Respondent, v. PLANNING BOARD OF the TOWN OF POUND RIDGE, Appellant.

Supreme Court, Appellate Division Second Department.

Dec. 9, 1985.

William F. Harrington, White Plains, for appellant.

Hoffman, Silverberg & Wachtell, White Plains (Steven M. Silverberg of counsel), for respondent.

Before LAZER, J.P., and THOMPSON, O'CONNOR, RUBIN and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to compel appellant to grant petitioner's application for final subdivision approval, the appeal is from an order of the Supreme Court, Westchester County (Ingrassia, J.), dated October 5, 1984, which granted the petition.

Judgment affirmed, with costs.

Because the appellant planning board failed to take any action on petitioner's application for plat approval within 45 days as is required by Town Law § 276(4), the application must be deemed approved (see, Matter of Pekar v. Town of Veteran Planning Bd., 58 A.D.2d 703, 396 N.Y.S.2d 102; Matter of Fusaro v. Ziemba, 46 A.D.2d 688, 360 N.Y.S.2d 278; see also, Matter of Sun Beach Real Estate Dev. Corp. v. Anderson, 98 A.D.2d 367, 469 N.Y.S.2d 964, affd 62 N.Y.2d 965, 479 N.Y.S.2d 341, 468 N.E.2d 296). Although the fact that the application may not have complied fully with the requirements of Town Law § 276(2)(b) might, in an appropriate case, warrant a denial of the application, it does not justify a complete failure to act upon it (see, Matter of Fishman v. Arnzen, 29 A.D.2d 954, 289 N.Y.S.2d 42; Matter of Castle Estates v. Hubbard, 52 Misc.2d 774, 276 N.Y.S.2d 741). Contrary to the appellant planning board's contention, the 1972 amendments to Town Law § 276 (L.1972, ch. 964, § 2) did not effect any change in this...