
    In the Matter of Baycrest Manor, Inc., Appellant, v Commissioner of the Environmental Conservation Department of the State of New York, Respondent.
    In a proceeding pursuant to CPLR article 78, inter alia, to declare that respondent’s determination, made after a hearing, denying petitioner’s application for a moratorium permit to allow construction upon certain wetlands, is the equivalent of a taking of petitioner’s property without compensation, the appeal is from a judgment of the Supreme Court, Richmond County, dated December 7, 1976, which dismissed the petition. Judgment modified, on the law, by deleting therefrom the provision which dismissed the petition and substituting therefor provisions (1) declaring that the determination was not a taking of petitioner’s property without compensation and (2) otherwise dismissing the proceeding on the merits. As so modified, judgment affirmed, with costs to respondent. The statutes involved herein are not unconstitutional as applied. Martuscello, J. P., Latham and Margett, JJ., concur; O’Connor, J., dissents and votes to hold the appeal in abeyance, with the following memorandum: In view of the decision of this court in Matter of Russo v New York State Dept. of Environmental Conservation (55 AD2d 935), a determination of this appeal at the present time would be inappropriate.
     