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Submitted by Brian C. Flynn, for Appellant.
Submitted by Robert H. Plaskov, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs, and the case remitted to that court for consideration of issues raised but not considered on the appeal to that court.
As this Court recently held in Matter of Gernatt Asphalt Prods. v Town of Sardinia (____NY2d____, Slip Opn Case No. 48 [decided 3-28-96]), the Mined Land Reclamation Law does not preempt a municipality's authority, by means of its zoning powers, to regulate or prohibit the use of land within its municipal boundaries for mining operations. Thus, the Appellate Division improperly dismissed the complaint on that ground.
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On review of submissions pursuant to section 500.4 of the Rules, order reversed, with costs, and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein. Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.