Blumeberg v. City of Yonkers

• Decision Date: 19 November 1964
• Citation: 205 N.E.2d 686,257 N.Y.S.2d 589,15 N.Y.2d 791
• Parties: , 205 N.E.2d 686 Jacob BLUMBERG et al., Respondents, v. CITY OF YONKERS et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 589

257 N.Y.S.2d 589

15 N.Y.2d 791, 205 N.E.2d 686

Jacob BLUMBERG et al., Respondents, v. CITY OF YONKERS et al., Appellants.

Court of Appeals of New York.

Argued Nov. 19, 1964.

Affirming order 21 A.D.2d 886, 251 N.Y.S.2d 750.

Arden H. Rathkopf, New York City, and John F. Trainor, Yonkers, for Morka Realty Corp., appellant.

Frederick J. Adler, Corp. Counsel, for remaining appellants.

Morton N. Wekstein, Yonkers, for respondents.

Order affirmed, with costs, upon the memorandum at the Appellate division.

DESMOND, C. J., and DYE, FULD and SCILEPPI, JJ., concur.

VAN VOORHIS, BURKE and BERGAN, JJ., dissent and vote to reverse and to reinstate the judgment of Special Term, BERGAN, J., in an opinion in which BURKE, J., concurs; VAN VOORHIS, J., in the following memorandum in which BURKE, J., concurs: I dissent upon the ground that the amendment to the Zoning Ordinance does not constitute spot zoning. It was adopted pursuant to a comprehensive plan to keep automobiles of patrons of large commercial establishments and other organizations off the streets.

BERGAN, Judge (dissenting).

The court at Special Term determined after a full trial of the issue that plaintiffs had not established they were damaged by the city ordinance which they have succeeded in having determined invalid. The court stated 'that the plaintiffs have offered no evidence which would warrant a finding that their properties were materially damaged in pecuniary value'.

In reversing, the Appellate Division did not state in its memorandum of decision that plaintiffs had shown they were materially damaged by the ordinance, but held, rather, that the 'standing' of two of the plaintiffs (Blumberg) to bring the action had been established in an earlier article 78 proceeding (Matter of Blumberg v. Feriola, 16 Misc.2d 1001, 182 N.Y.S.2d 735, revd. 8 A.D.2d 850, 190 N.Y.S.2d 543, affd. 7 N.Y.2d 852, 196 N.Y.S.2d 989, 164 N.E.2d 863); and because they had 'the requisite standing' to bring that proceeding 'it follows' they have the 'standing' to bring the present action.

The court indicated that it felt it was unnecessary to reach, and therefore did not reach, the question whether plaintiffs had shown they were damaged by the ordinance; and nothing about the decision, the order of the Appellate Division or the judgment entered on its order, although the reversal was on the facts as well as the law, suggests that it made any finding that plaintiffs established their properties were materially damaged. Indeed, the record would not, as the Special Term noted, sustain any such finding.

It has become quite well settled that local legislative enactments of this character will not be struck down unless the plaintiff shows some substantial property damage (Isen Contr. Corp. v. Town of Oyster Bay, 279 App.Div. 1010, 111 N.Y.S.2d 488; Buckley v. Fasbender, 281 App.Div. 985, 121 N.Y.S.2d 3). In Brechner v. Incorporated Vil. of Lake Success, 25 Misc.2d 920, 921, 208 N.Y.S.2d 365, 368, the Special Term noted on the authority of Marcus v. Village of Mamaroneck, 283 N.Y. 325, 333, 28 N.E.2d 856, 860, that 'the interest necessary to sustain such an action arises only when 'the property belonging to plaintiffs was materially damaged in pecuniary value."

There were essential differences between the scope and the issues presented in the earlier article 78 proceeding and those in this action, which require that if plaintiffs are to succeed here in attacking the local ordinance they must prove in this action that they are damaged. There was not only a complete difference between these defendants and the Zoning Board of Appeals, the respondent in the prior proceeding, but there were differences between the...