Posted by: Patricia Salkin | March 13, 2015

NY Appellate Court Dismisses Claim for Failure to Exhaust Administrative Remedies

The petitioner in this case commenced a CPLR article 78 proceeding seeking review of the denial of his application for a building permit by the Building Department of the Town of Brookhaven. As the court noted, one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law. Here, the petitioner failed to pursue an available administrative remedy-an appeal to the Board of Zoning Appeals of the Town of Brookhaven-prior to seeking judicial intervention. Furthermore, the petitioner failed to establish that an exception to the exhaustion doctrine was applicable, such as futility. Accordingly, the court found that the Supreme Court properly granted the respondents’ motion to dismiss the petition.

Larocca v Department of Planning, Environment, and Development of Town of Brookhaven, 2015 WL 446784 (NYAD 2 Dept. 2/4/2015)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2015/D44217.pdf


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