SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

754 

CA 14-01578 

PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ. 

 

IN THE MATTER OF GEORGE EASTMAN HOUSE, INC., 

ALSO KNOWN AS INTERNATIONAL MUSEUM OF PHOTOGRAPHY 

AT GEORGE EASTMAN HOUSE, DOING BUSINESS AS GEORGE 

EASTMAN HOUSE INTERNATIONAL MUSEUM OF PHOTOGRAPHY,

PETITIONER-APPELLANT, 

 

V MEMORANDUM AND ORDER

MORGAN MANAGEMENT, LLC, MONROE VOITURE NO. 111 

MEMORIAL HOME, INC., LA SOCIETE DES 40 HOMMES 

ET 8 CHEVAUX, CITY OF ROCHESTER DIRECTOR OF 

PLANNING AND ZONING, CITY OF ROCHESTER PLANNING 

COMMISSION AND CITY OF ROCHESTER PRESERVATION 

BOARD, RESPONDENTS-RESPONDENTS. 

 

THOMAS H. JACKSON, VICTOR, FOR PETITIONER-APPELLANT.

WOODS OVIATT GILMAN LLP, ROCHESTER (REUBEN ORTENBERG OF COUNSEL), FOR

RESPONDENT-RESPONDENT MORGAN MANAGEMENT, LLC. 

T. ANDREW BROWN, CORPORATION COUNSEL, ROCHESTER (JOHANNA F. BRENNAN OF

COUNSEL), FOR RESPONDENTS-RESPONDENTS CITY OF ROCHESTER DIRECTOR OF 

PLANNING AND ZONING, CITY OF ROCHESTER PLANNING COMMISSION AND CITY OF

ROCHESTER PRESERVATION BOARD. 

 

CIMINELLI & CIMINELLI, PLLC, PENFIELD (PAUL VINCENT CIMINELLI OF

COUNSEL), FOR RESPONDENT-RESPONDENT MONROE VOITURE NO. 111 

MEMORIAL HOME, INC., LA SOCIETE DES 40 HOMMES ET 8 CHEVAUX. 

 

Appeal from a judgment (denominated order) of the Supreme Court,

Monroe County (Thomas A. Stander, J.), entered May 29, 2014 in a

proceeding pursuant to CPLR article 78. The judgment, among other

things, dismissed the amended petition. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner commenced this CPLR article 78 proceeding

challenging, inter alia, the determination of respondent City of

Rochester Planning Commission (Planning Commission) approving the

application of respondent Morgan Management, LLC (Morgan), for a

special permit. The special permit allows Morgan to construct an

apartment building on property owned by respondent Monroe Voiture No.

111 Memorial Home, Inc., La Societe Des 40 Hommes et 8 Chevaux (Monroe
-2- 754 

CA 14-01578 

Voiture), “in association with the overall redevelopment of the

property.” Petitioner is a not-for-profit corporation that owns the

property adjacent to the Monroe Voiture property, which includes the

George Eastman House. 

We note at the outset that, although petitioner’s notice of

appeal states, inter alia, that it is appealing from “each and every

part of” the judgment, petitioner contends on appeal only that Supreme

Court erred in dismissing the second cause of action in the amended

petition. Petitioner has thus abandoned any issues with respect to

the remainder of the amended petition (see Ciesinski v Town of Aurora,

202 AD2d 984, 984).

Contrary to petitioner’s contention, we conclude that the court

properly agreed with respondents that the second cause of action

should be dismissed. Pursuant to Chapter 120, Article XVII of the

Municipal Code of the City of Rochester (Code), the City of Rochester

(City) established Planned Development District (PDD) No. 14, which

includes the property of petitioner and Monroe Voiture. The City’s

intent in establishing PDD No. 14 was “to recognize and permit a

defined area for the delivery of programs and community services

offered by George Eastman House and the Monroe Voiture . . . and to

provide for the orderly growth and development of the properties”

(Code, Ch PDD, PDD No. 14, § [A]). A special permit is required in

PDD No. 14 for “[m]ultifamily dwellings in newly constructed

buildings” (id. at § [C] [1]). Morgan applied for a special permit

for the construction of a three- and four-story, 99-unit multifamily

apartment building. The application further stated that the proposed

project would include, inter alia, the renovation and rehabilitation

of the existing clubhouse on the Monroe Voiture property. Following a

hearing, the Planning Commission found that the proposed project met

the City’s standards for approval of a special permit (see Code § 120-

192 [B] [3] [a] [1]), including that the proposed project would be in

harmony with the goals, standards and objectives of the City’s

Comprehensive Plan. Petitioner commenced this proceeding and the

court, inter alia, dismissed petitioner’s second cause of action

seeking to annul the Planning Commission’s determination. We affirm.

The Planning Commission’s “determination ‘should be sustained

upon judicial review if it was not illegal, [had] a rational basis,

and [was] not arbitrary and capricious’ ” (Matter of Kearney v Kita,

62 AD3d 1000, 1001, lv denied 13 NY3d 716; see Matter of Kempisty v

Town of Geddes, 93 AD3d 1167, 1169, lv denied 19 NY3d 815, rearg

denied 21 NY3d 930; Matter of McLiesh v Town of Western, 68 AD3d 1675,

1676). With respect to the determination granting the application for

a special permit, we note at the outset that “[t]he inclusion of the

permitted use in the ordinance is tantamount to a legislative finding

that the permitted use is in harmony with the general zoning plan and

will not adversely affect the neighborhood” (Matter of North Shore

Steak House v Board of Appeals of Inc. Vil. of Thomaston, 30 NY2d 238,

243). Thus, “once it is shown that the contemplated use is in

conformance with the conditions imposed, the special use permit must

be granted unless there are reasonable grounds for its denial,

supported by substantial evidence” (Matter of Sunrise Plaza Assoc. v
-3- 754 

CA 14-01578 

Town Bd. of Town of Babylon, 250 AD2d 690, 693, lv denied 92 NY2d

810).

We agree with petitioner that the purpose and intent of PDD No.

14 was relevant to the Planning Commission’s evaluation of Morgan’s

application for the special permit. We reject petitioner’s further

contention, however, that the Planning Commission failed to consider

whether Morgan’s special permit application was in harmony with the

purpose and intent of PDD No. 14 when it approved the application. 

The Planning Commission considered that, in addition to the

construction of a multifamily apartment building, the proposed project

included renovation of the clubhouse, allowing for the continuance and

expansion of the programs and community services offered by Monroe

Voiture. In addition, the Planning Commission found that the proposed

project as a whole would fulfill the purpose and intent of PDD No. 14. 

Contrary to petitioner’s contention, the Planning Commission was not

required to consider the apartment building apart from the

improvements to the existing property in determining whether the

application was consistent with the purpose and intent of PDD No. 14. 

Although the new construction of a multifamily dwelling triggered the

special permit process, the Planning Commission was entitled to

consider the apartment building in the context of the overall

redevelopment of the Monroe Voiture property. Moreover, the evidence

before the Planning Commission established that the application for a

special use permit for the construction of a multifamily dwelling on

the property would directly affect the renovation of the deteriorating

clubhouse and Monroe Voiture’s ability to continue and enhance its

operations. Thus, we agree with the court that the Planning

Commission’s approval of Morgan’s application for a special permit was

not illegal, irrational, or arbitrary and capricious.

Entered: July 10, 2015 Frances E. Cafarell

Clerk of the Court