Allmendinger v. Ziegner
| Decision Date | 24 April 1978 |
| Citation | 405 N.Y.S.2d 269,62 A.D.2d 1053 |
| Court | New York Supreme Court — Appellate Division |
| Parties | In the Matter of Raymond ALLMENDINGER, Councilman, et al., constituting the Town Board of the Town of Babylon, Appellants, v. Harold ZIEGNER, chairman, et al., constituting the Zoning Board of Appeals of the Town of Babylon, Respondents-Respondents. C. DeMasco Scrap Iron & Metal Corp., Intervenor-Respondent. |
Joseph F. Klein, Town Atty., Lindenhurst (Wallace H. Boyle, Lindenhurst, of counsel), for appellants.
Sidney N. Gitelman, East Northport, for respondents-respondents.
Blumberg, FitzGibbons & Blumberg, Amityville (Edgar Hills, Riverhead, of counsel), for intervenor-respondent.
Before MOLLEN, P. J., and SHAPIRO, HAWKINS and SUOZZI, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 78 inter alia to review a determination of the Zoning Board of Appeals of the Town of Babylon, which granted a special use permit to the intervenor-respondent, petitioners appeal from a judgment of the Supreme Court, Suffolk County, dated September 8, 1977, which dismissed the petition for failure to state a cause of action.
Judgment affirmed, without costs or disbursements.
It was not necessary for the intervenor to have applied to the Zoning Board of Appeals for a special use permit. Therefore, the board's action in granting the permit need not be reviewed and the petition was properly dismissed, see Matter of C. DeMasco Scrap Iron & Metal Corp. v. Zirk, --- A.D.2d ---, 405 N.Y.S.2d 260 (decided herewith).
SUOZZI, Justice, dissents and votes to reverse the judgment and grant the petition, in accordance with the views set forth in his dissenting opinion in Matter of C. DeMasco Scrap Iron & Metal Corp. v. Zirk, --- A.D.2d ---, 405 N.Y.S.2d 260 (decided herewith).
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C. DeMasco Scrap Iron & Metal Corp. v. Zirk
... ... An appeal by the Town Board from that determination has been taken to this court and is being decided herewith (Matter of Allmendinger v. Ziegner, --- App.Div. ---, 405 N.Y.S.2d 269) ... On September 9, 1977 the Special Term (LIPETZ, J.) granted the instant ... ...
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... ... v. Zirk, 62 A.D.2d 92, 405 N.Y.S.2d 260, affd. 46 N.Y.2d 864, 405 N.Y.S.2d 260, and Matter of Allmendinger v. Ziegner, 62 A.D.2d 1053, 405 N.Y.S.2d 269, affd. 46 N.Y.2d 864, 405 N.Y.S.2d 269 wherein this court held that an automobile shredder was a ... ...
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C. Demasco Scrap Iron & Metal Corp. v. Zirk
... ... Herbert ZIRK, Chief Building Inspector of the Town of ... Babylon, et al., Appellants ... In the Matter of Raymond ALLMENDINGER et al., Constituting ... the Town Board of the Town of Babylon, Appellants, ... Harold ZIEGNER et al., Constituting the Zoning Board of ... Appeals ... ...