
    Manitou Sand & Gravel Co., Inc., Respondent, v Town of Ogden et al., Appellants.
    Decided December 17, 1981
    
      APPEARANCES OF COUNSEL
    
      G. Robert Witmer, Jr., for appellants.
    
      Donald Spadone for respondent.
   OPINION OF THE COURT

On summary consideration, order reversed, with costs, and the matter remitted to the Appellate Division, Fourth Department, for a review of the merits. Petitioner’s 1980 permit application encompassed not only the property it had been excavating under the 1979 permit, but also additional contiguous acreage not contemplated for excavation in 1979. This change in factual circumstances thus renders application of the doctrine of collateral estoppel in the 1980 proceeding inappropriate. To be sure there may be instances where the circumstances are so parallel as to call for the application of the doctrine of collateral estoppel; however, the particular change in factual circumstances involved in this instance renders the application of the doctrine in the 1980 proceeding inappropriate. Special Term found that petitioner would be entitled to relief on the merits even if collateral estoppel had not been applied. Because the Appellate Division affirmed solely on collateral estoppel grounds the matter should be remitted to the Appellate Division for a review of the merits of article 78 application to annul the depth limitation condition imposed by the town board in connection with petitioner’s excavation license.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.  