Connors v. New York State Department of Environmental Conservation

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent, dated January 23, 1990, which denied the petitioners’ application for a freshwater wetlands interim permit, the petitioners appeal from so much of an order of the Supreme Court, Suffolk County (Stark, J.), dated March 9, 1990, as directed that the matter be transferred to this court pursuant to CPLR 7803 (4) and 7804 (g).

Ordered that on the court’s own motion the petitioners’ notice of appeal is treated as an application for leave to appeal, the application is referred to Justice Eiber, and leave to appeal is granted by Justice Eiber (see, CPLR 5701 [b] [1]); and it is further,

Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings consistent herewith.

Since the petitioners concede on appeal that they do not contend that the respondent’s determination was not supported by substantial evidence, this matter should not have been transferred to this court (see, CPLR 7803 [4]; 7804 [g]). Further, since the petitioners contend that the respondent’s denial of their permit pursuant to ECL 24-0705 constituted an unconstitutional taking of their property, upon remittitur, the Supreme Court shall conduct an evidentiary hearing on this issue (see, Spears v Berle, 48 NY2d 254). Bracken, J. P., Kunzeman, Eiber and Ritter, JJ., concur.