Agusta v. Silva
| Decision Date | 22 February 1994 |
| Citation | 608 N.Y.S.2d 623,201 A.D.2d 405 |
| Parties | Philip P. AGUSTA, et al., Petitioners, For an Order, etc. v. Gaston SILVA, etc., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and ELLERIN, ASCH and TOM, JJ.
Determination of the New York City Board of Standards and Appeals (BSA) dated September 24, 1991, which denied petitioners' application for a zoning variance, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR Article 78 (), is dismissed, without costs.
This proceeding was improperly transferred to the Appellate Division pursuant to CPLR 7804(g) since the BSA's determination was not "made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law" pursuant to CPLR 7803(4) (see, Department of Envtl. Protection v. Department of Envtl. Conservation, 120 A.D.2d 166, 169, 508 N.Y.S.2d 643, lv. denied 69 N.Y.2d 921, 516 N.Y.S.2d 654, 509 N.E.2d 349; Matter of Holy Spirit Assn. for Unification of World Christianity v. Tax Commn., 62 A.D.2d 188, 193, 404 N.Y.S.2d 93). Notwithstanding such improper transfer, that court retains jurisdiction in the interest of judicial economy, applying the applicable standard of whether the determination was arbitrary and capricious (Holy Spirit Assn. for Unification of World Christianity v. Tax Commn., supra ), which issue was determined by the IAS court in the negative. We agree.
Petitioner Ruth Salstein is the owner of record of premises located at 132-08 Crossbay Boulevard in Ozone Park, Queens. Petitioner Anthony Bono is the lessee of the premises and operates a restaurant on the first floor. The property is in an R4 residential district, and the restaurant is operated as a legal non-conforming use, which existed prior to the time that the area was zoned residential. Petitioners seek a variance of the Zoning Resolution in order to expand the premises to enlarge the kitchen and to accommodate additional patrons. The Board of Standards and Appeals properly determined that petitioners failed to make the threshold showing of "practical difficulties" or "unnecessary hardship" pursuant to Section 72-21 of the Zoning Resolution. The determination to deny the application for a variance, therefore, was not arbitrary, capricious or an abuse of discretion.
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