MATTER OF TON-DA-LAY v. DIAMOND, SIERRA CLUB, 35 N.Y.2d 789 (1974)

362 N.Y.S.2d 156, 320 N.E.2d 870

In the Matter of TON-DA-LAY, LTD., Respondent, and FRANKLIN COUNTY et al., Intervenors-Respondents, v. HENRY L. DIAMOND, as Commissioner of Environmental Conservation, et al., Appellants, and SIERRA CLUB, Intervenor-Appellant.

Court of Appeals of the State of New York.Submitted September 16, 1974
Decided November 15, 1974

Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.

Page 790

David N. Ellenhorn for motion.

Louis J. Lefkowitz, Attorney-General (Julius Feinstein of counsel), and Robert J. Kafin opposed.

Motion granted and appeals dismissed, without costs and without prejudice to an application for leave to appeal, on the ground that the order of the Appellate Division did not direct a modification in a substantial respect by which appellants were aggrieved (CPLR 5601, subd. [a], par. [iii]; Matter of Kaplan
v. Rohan, 7 N.Y.2d 884). Appeal, if any, lies from the order of the Appellate Division rather than from its opinion. Accordingly, the views expressed in the opinion at the Appellate Division in this instance, which are at variance with the contentions of the department on which it predicated its determinations, do not qualify as modifications of the department’s denial of petitioner’s applications. That denial was the only “result” of the department’s action to which the article 78 proceeding was addressed and that “result” was unqualifiedly confirmed.

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