Kaweco Construction Corp. v. Department of Environmental Protection Administration

In a proceeding pursuant to CPLR article 78 to (1) annul a determination which denied petitioner a permit to' connect his proposed three-family buildings to a sanitary sewer and (2) to compel respondents to immediately issue such permit, the appeal is from a judgment of the Supreme Court, Queens County, dated April '9, 1974, which (1) annulled the determination and (2). remitted the proceeding .to respondents for a new determination. Judgment reversed, on the law, without costs, and proceeding dismissed, without prejudice to the commencement of'a proceeding, within 30 days after entry of the order to be made hereon, to determine whether the denial of the necessary sanitary sewer permit was war- ■ ranted to prevent a condition dangerous to public health and welfare or whether the denial was based solely on a pretext that the construction would create such a condition. The recent decision of the Court of Appeals in Matter of Belle Harbor Realty Corp. v. Kerr (35 N Y 2d 507) is dispositive of this appeal. Latham, Acting P. J., Christ, Benjamin, Munder and Shapiro, JJ., concur.