
    (March 31, 1995)
    In the Matter of Save Easton Environment et al., Petitioners, v Langdon Marsh, as Acting Commissioner of the New York State Department of Environmental Conservation, et al., Respondents, and Peckham Materials Corp., Intervenor-Respondent.
    [625 NYS2d 95]
   —Proceeding pursuant to CPLR article 78 and action for a declaratory judgment (transferred to this Court by order of the Supreme Court, entered in Albany County) to review the issuance of a Mined Land Use and Reclamation Permit by the New York State Department of Environmental Conservation.

Motion by intervenor-respondent to dismiss petition, or in the alternative, dismiss certain causes of action, to strike certain parties as petitioners, strike certain exhibits and affidavits attached to the petition and strike portions of the petition.

Motion by respondents to dismiss certain petitioners, dismiss certain causes of action, dismiss certain allegations and declaratory judgment claims and strike certain affidavits and exhibits attached to the petition.

Cross motion by petitioners to dismiss answer and motion of intervenor-respondent.

Cross motion by petitioners to remit the proceeding and action to the Supreme Court, Albany County, and dismiss the motions by intervenor-respondent and respondents.

Petitioners commenced the present proceeding pursuant to CPLR article 78 and action for declaratory judgment seeking to nullify a Mined Land Use and Reclamation Permit issued by the New York State Department of Environmental Conservation to respondent-intervenor Peckham Materials Corp. (hereinafter Peckham). Prior to answering, Peckham moved in the Supreme Court to dismiss the petition as barred by the applicable Statute of Limitations and for further relief, including dismissing certain causes of action and striking certain parties. Respondents also moved prior to answering to dismiss certain petitioners and certain causes of action and for further relief. In addition, respondents and Peckham moved for a transfer of the proceeding to this Court based on the existence of a substantial evidence issue. By order dated January 13, 1995, Supreme Court denied Peckham’s motion to dismiss on Statute of Limitations grounds without prejudice to renewal of the motion in this Court after transfer of the proceeding. By separate order also dated January 13, 1995, Supreme Court transferred the proceeding to this Court without deciding the other issues raised by respondents and Peckham in their motions.

Pursuant to CPLR 7804 (g), where a substantial evidence issue is raised, the court of original instance is required to first dispose of such other objections as could terminate the proceeding. It is the view of this Court that the Supreme Court in the present matter should have addressed all of the issues raised on the motions by respondents and Peckham before transferring the proceeding to this Court to consider the substantial evidence issue. Accordingly, this Court will grant the cross motion by petitioners to remit the proceeding to the Supreme Court and remit the other cross motion by petitioners and the motions by respondents and Peckham to the Supreme Court.

Upon the papers filed in support of the motions and the papers filed in support of the cross motions, it is ordered that the cross motion by petitioners to remit the proceeding and action is granted, without costs, only to the extent that the matter is remitted to the Supreme Court, Albany County and cross motion in all other respects denied, and it is further ordered that the motions by intervenor-respondent and respondent and the cross motion to dismiss the answer and motion of intervenor-respondent are remitted to the Supreme Court, Albany County.

Cardona, P. J., Mercure, White, Casey and Peters, JJ., concur.  