24 Franklin Ave. R.E. Corp. v. Heaship
| Decision Date | 04 May 2016 |
| Docket Number | 2014-04334, Index No. 24531/07. |
| Citation | 2016 N.Y. Slip Op. 03516,139 A.D.3d 742,30 N.Y.S.3d 695 |
| Parties | In the Matter of 24 FRANKLIN AVE. R.E. CORP., et al., petitioners/plaintiffs-respondents, v. Thomas HEASHIP, et al., respondents/defendants, Stephen Malfitano, et al., respondents/defendants-appellants. |
| Court | New York Supreme Court — Appellate Division |
139 A.D.3d 742
30 N.Y.S.3d 695
2016 N.Y. Slip Op. 03516
In the Matter of 24 FRANKLIN AVE. R.E. CORP., et al., petitioners/plaintiffs-respondents,
v.
Thomas HEASHIP, et al., respondents/defendants,
Stephen Malfitano, et al., respondents/defendants-appellants.
2014-04334, Index No. 24531/07.
Supreme Court, Appellate Division, Second Department, New York.
May 4, 2016.
Bond, Schoeneck & King, PLLC, Garden City, N.Y. (Richard S. Finkel of counsel), for respondents/defendants-appellants.
Joseph C. Messina, Mamaroneck, NY, for petitioners/plaintiffs-respondents.
MARK C. DILLON, J.P., LEONARD B. AUSTIN, JOSEPH J. MALTESE, and BETSY BARROS, JJ.
In a hybrid proceeding pursuant to CPLR article 78 and action, inter alia, for a judgment declaring invalid Local Law No. 4 (2007) of the Town/Village of Harrison, the respondents/defendants
Stephen Malfitano, Joseph Cannella, Robert Paladino, Thomas Scappaticci, Pat Vetere, and Robert W. Fitzsimmons appeal from an order of the Supreme Court, Westchester County (Giacomo, J.), dated March 24, 2014, which granted the petitioners/plaintiffs' motion for summary judgment declaring invalid Local Law No. 4 (2007) of the Town/Village of Harrison and directing the Building Official of the Town/Village of Harrison to issue certain building permits to the petitioners/plaintiffs, and denied their cross motion for summary judgment dismissing the petition/complaint insofar as asserted against them.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the petitioners/plaintiffs' motion which was for summary judgment directing the Building Official of the Town/Village of Harrison to issue certain building permits to the petitioners/plaintiffs, and substituting therefor a provision denying that branch of the motion and remitting the matter to the Planning Board of the Town/Village of Harrison for further proceedings consistent herewith; as so modified, the order is affirmed, without costs or disbursements.
In this hybrid proceeding and action, the petitioners/plaintiffs (hereinafter the plaintiffs) sought, inter alia, a judgment declaring invalid Local Law No. 4 (2007) of the Town/Village of Harrison (hereinafter LL No. 4). The plaintiffs own two adjacent parcels of real property within the Town/Village of Harrison (hereinafter the Town). In 2007, the plaintiffs sought to subdivide the two parcels into three parcels, and they received final subdivision approval from the Town Planning Board. That subdivision approval was based on a site map indicating that one of the existing houses on the property was “to remain,” while a second existing house would be demolished and replaced by two new two-family homes. The plaintiffs subsequently sought building permits for the construction of three, not two, two-family homes on the combined lots. That use was permitted by the zoning code as it then existed; however, that use was not encompassed by the Planning Board subdivision approval.
In September 2007, the Town Board enacted LL No. 4, which amended the zoning code, as relevant, by providing that the construction of only single-family homes would be permitted in the area in which the subject property is located.
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