113 Hillside Ave. Corp. v. Village of Westbury

CourtNew York Supreme Court Appellate Division
Citation27 A.D.2d 858,278 N.Y.S.2d 558
Parties113 HILLSIDE AVENUE CORPORATION, Appellant, v. VILLAGE OF WESTBURY et al., Respondents.
Decision Date27 March 1967

Page 558

278 N.Y.S.2d 558
27 A.D.2d 858
113 HILLSIDE AVENUE CORPORATION, Appellant,
v.
VILLAGE OF WESTBURY et al., Respondents.
Supreme Court, Appellate Division, Second Department.
March 27, 1967.

Page 559

Before UGHETTA, Acting P.J., and CHRIST, RABIN, BENJAMIN and MUNDER, JJ.

MEMORANDUM BY THE COURT.

Judgment of the Supreme Court, Nassau County, entered June 20, 1966, modified, on the law, by (1) striking out its first decretal paragraph, which granted defendants' motion to dismiss the complaint as to building permit No. 6578 and (2) substituting therefor a declaration that the issuance of said permit by the defendant Building Inspector of the defendant Village was unauthorized and unlawful. As so modified, judgment affirmed insofar as appealed from, without costs. The trial court's findings of fact are affirmed.

The Board of Trustees of the defendant Village was without power to review the acts of the Building Inspector in granting the permits; that power is vested exclusively in the Board of Appeals of the Village. The purported revocation was ineffective (Village Law, § 179-b; Westbury Zoning Ordinance, §§ 50--150, 50--154; see Matter of Kalen, 248 App.Div. 777, 289 N.Y.S. 58). The remedy of direct administrative review of the action by the Board of Trustees was not available; hence plaintiff's suit was properly brought.

Plaintiff sought a declaration that both permits issued to it were in full force and effect. However, the application for permit No. 6578 did not conform to the 'front yard' requirements of the Zoning Ordinance of the Village. The issuance of this permit by the Building Inspector was, therefore, unlawful, and the Special Term so decided.

Dismissal of the complaint, however, was incorrect; defendants were entitled to a declaration that the permit was invalid (Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 393, 183 N.E.2d 670, 679, app. dsmd. 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163; Martin v. State Liquor Auth., 43 Misc.2d 682, 690, 252 N.Y.S.2d 365, affd. 15 N.Y.2d 707, 256 N.Y.S.2d 336, 204 N.E.2d 496).

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8 practice notes
  • Petruso v. Schlaefer, No. CV 06 2632.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 14, 2007
    ...Dep't.1986) (village board is without power to consider appeal from grant of a permit); 113 Hillside Avenue Corp. v. Village of Westbury, 27 A.D.2d 858, 858, 278 N.Y.S.2d 558, 559 (2d Dep't.1967)(village board of trustees without power to review acts of building inspector, such power being ......
  • Moriarty v. Planning Bd. of Village of Sloatsburg
    • United States
    • New York Supreme Court — Appellate Division
    • September 2, 1986
    ...inspector, since the Legislature has delegated that power to the board of appeals (113 Hillside Ave. Corp. v. Village of Westbury, 27 A.D.2d 858, 278 N.Y.S.2d 558; Matter of Kalen v. Amato, 248 App.Div. 777, 290 N.Y.S. 429). In the absence of an administrative determination to review, a zon......
  • 113 Hillside Ave. Corp. v. Zaino
    • United States
    • New York Court of Appeals
    • November 25, 1970
    ...the defendants 'were entitled to a declaration that (such) permit was invalid.' (113 Hillside Ave. Corp. v. Village of Westbury, 27 A.D.2d 858, 278 N.Y.S.2d The corporation then adopted a different course; it applied to the Village's Board of Appeals for substantial street frontage and yard......
  • Fort Ridge Builders, Inc. v. Zoning Bd. of Appeals of Town of Smithtown
    • United States
    • New York Supreme Court — Appellate Division
    • July 31, 1978
    ...for the permit did not conform to the requirements of the village ordinance (see 113 Hillside Ave. Corp. v. Village of Westbury, 27 A.D.2d 858, 278 N.Y.S.2d 558) the petitioner applied to the Village Board of Appeals for an area variance. The board denied the application. Special Term annul......
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8 cases
  • Petruso v. Schlaefer, No. CV 06 2632.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • February 14, 2007
    ...Dep't.1986) (village board is without power to consider appeal from grant of a permit); 113 Hillside Avenue Corp. v. Village of Westbury, 27 A.D.2d 858, 858, 278 N.Y.S.2d 558, 559 (2d Dep't.1967)(village board of trustees without power to review acts of building inspector, such power being ......
  • Moriarty v. Planning Bd. of Village of Sloatsburg
    • United States
    • New York Supreme Court — Appellate Division
    • September 2, 1986
    ...inspector, since the Legislature has delegated that power to the board of appeals (113 Hillside Ave. Corp. v. Village of Westbury, 27 A.D.2d 858, 278 N.Y.S.2d 558; Matter of Kalen v. Amato, 248 App.Div. 777, 290 N.Y.S. 429). In the absence of an administrative determination to review, a zon......
  • 113 Hillside Ave. Corp. v. Zaino
    • United States
    • New York Court of Appeals
    • November 25, 1970
    ...the defendants 'were entitled to a declaration that (such) permit was invalid.' (113 Hillside Ave. Corp. v. Village of Westbury, 27 A.D.2d 858, 278 N.Y.S.2d The corporation then adopted a different course; it applied to the Village's Board of Appeals for substantial street frontage and yard......
  • Fort Ridge Builders, Inc. v. Zoning Bd. of Appeals of Town of Smithtown
    • United States
    • New York Supreme Court — Appellate Division
    • July 31, 1978
    ...for the permit did not conform to the requirements of the village ordinance (see 113 Hillside Ave. Corp. v. Village of Westbury, 27 A.D.2d 858, 278 N.Y.S.2d 558) the petitioner applied to the Village Board of Appeals for an area variance. The board denied the application. Special Term annul......
  • Request a trial to view additional results

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