Abate v. City of Yonkers

• Citation: 694 N.Y.S.2d 724
• Parties: In the Matter of Samuel J. ABATE, Jr., et al., appellants, v. CITY OF YONKERS, et al., respondents.
• Decision Date: 30 August 1999
• Court: New York Supreme Court Appellate Division

Page 724

694 N.Y.S.2d 724

In the Matter of Samuel J. ABATE, Jr., et al., appellants, v. CITY OF YONKERS, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 30, 1999.

Keane & Beane, P.C., White Plains, N.Y. (Richard L. O'Rourke, Judson K. Siebert, and Nicholas M. Ward-Willis of counsel), for appellants.

William M. Mooney III, Corporation Counsel, Yonkers, N.Y. (Alain M. Natchev and Dorian Kreatsoulas of counsel), for respondents City of Yonkers and City of Yonkers Planning Bureau.

Frederick W. Turner, Town Attorney, Elmsford, N.Y., for respondent Town of Greenburgh.

Pirro, Collier, Cohen & Halpern, LLP, White Plains, N.Y. (Philip M. Halpern, Paul D. Sirignano, and William A. Walsh of counsel), for respondents Morris Industrial Builders, LP, Morris Companies, Home Depot U.S.A., Inc., Costco Wholesale Corporation, Building and Construction Trades Council of Westchester and Putnam Counties, New York, Teamsters Union Local No. 456, and Construction Industry Council of Westchester and Hudson Valley, Inc.

Plunkett & Jaffe, P.C., White Plains, N.Y. (Robert Hermann and Josephine Trovini of counsel), for respondent Westchester County Industrial Development Agency.

Dorfman, Lynch & Knoebel, Nyack, N.Y. (Dennis E.A. Lynch of counsel), for respondent Yonkers Industrial Development Agency.

Eliot L. Spitzer, Attorney-General, New York, N.Y. (Robert A. Forte and Laura Blackman of counsel), for respondent New York State Thruway Authority.

SONDRA MILLER, J.P., WILLIAM D. FRIEDMANN, SANDRA J. FEUERSTEIN and NANCY E. SMITH, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78, inter alia, to prohibit the respondent City of Yonkers from issuing any additional building permits in connection with a commercial development project in the City of Yonkers, the petitioners appeal, as limited by their brief, from (1) a judgment of the Supreme Court, Westchester County (Barone, J.), entered June 18, 1998, which, upon the granting of the application of the respondents Morris Companies and Morris Industrial Builders, LP, to dismiss the proceeding as premature, dismissed the proceeding, and (2) so much of an order of the same court entered September 9, 1998, as, upon reargument and renewal, adhered to the original determination.

ORDERED that the appeal from the judgment entered June 18, 1998, is dismissed, as the judgment was superseded by the order entered September 9, 1998 made upon reargument and renewal; and it is further,

ORDERED that the order entered September 9, 1998, is reversed insofar as appealed from, the judgment entered June 18, 1998, is vacated, the petition is reinstated and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith; and it is further,

ORDERED that the appellants are awarded one bill of costs payable by the respondents appearing separately and filing separate briefs.

The appellants' claims are not premature. We find that certain actions taken by some of the respondents were in contravention of the 1995 Statement of Findings adopted by the respondent City Council of the City of Yonkers which required the opening of Sprain Road as a mitigating traffic measure in the commercial development project in the City of Yonkers known as the "Austin Avenue Shopping Center" under construction by the respondents Morris Industrial Builders,...