Board of Coop. Educational Services of Nassau County v. Gaynor

• Decision Date: 24 November 1969
• Citation: 306 N.Y.S.2d 216,33 A.D.2d 701
• Parties: In the Matter of BOARD OF COOPERATIVE EDUCATIONAL SERVICES OF NASSAU COUNTY et al., Respondents-Appellants, v. Edward J. GAYNOR, Director of the Department of Building and Zoning of the Town of Oyster Bay, and Michael N. Petito et al., constituting the Town Board of the Town of Oyster Bay, Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 216

306 N.Y.S.2d 216

33 A.D.2d 701

In the Matter of BOARD OF COOPERATIVE EDUCATIONAL SERVICES OF NASSAU COUNTY et al., Respondents-Appellants, v. Edward J. GAYNOR, Director of the Department of Building and Zoning of the Town of Oyster Bay, and Michael N. Petito et al., constituting the Town Board of the Town of Oyster Bay Appellants-Respondents.

Supreme Court, Appellate Division, Second Department.

Nov. 24, 1969.

Seymour H. Kligler, New York City, for respondent, Board of Cooperative Educational Services of Nassau County, Michael L. Goldstein, David A. Brauner, New York City, of counsel.

Halperin, Somers & Goldstick, New York City, for respondent, Dalebass Realty, Inc., Jerome R. Halperin, New York City, of counsel.

Bernard F. McCaffrey, Town Atty., Oyster Bay, for appellants, David J. Weinblatt, Senior Deputy Town Atty., Oyster Bay, of counsel, Charles F. Lynch, Deputy Town Atty., on the brief.

Before BRENNAN, Acting P.J., and RABIN, HOPKINS, BENJAMIN and KLEINFELD, JJ., concur.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to article 78 of the CPLR to review and annul a determination of the Director of the Department of Building and Zoning of the Town of Oyster Bay revoking building permits which had been issued to petitioner Board of Cooperative Educational Services of Nassau County (hereinafter referred to as BOCES) and for other relief, the appeals are as follows from a judgment of the Supreme Court, Nassau County, entered August 27, 1969: (1) said Director and the Town Board of said Town appeal from so much of the judgment as requires the Director to reinstate the permits and to add petitioner Dalebass Realty, Inc. to the permits as a permittee; and (2) petitioners cross-appeal from the judgment to the extent that it does not include provisions giving them injunctive relief and adjudging that the subject premises are exempt from the Town's ordinances.

Judgment affirmed insofar as appealed from, without costs.

The building permits were issued after BOCES had entered into an agreement with Dalebass whereby Dalebass was to construct buildings on its property for use by BOCES. Under the agreement, BOCES leased the premises from Dalebass for a five-year term, with an option to renew for an additional five years; and at the expiration of the 10-year period BOCES had a further option to purchase the property and improvements, subject to a referendum of the voters approving the purchase. The permits were revoked on the ground that they had been invalidly issued; and in this proceeding the Director and the Town Board urge, in substance, that the revocation was proper because the lease agreement between the petitioners was void.

We agree with the Special Term (1) that the Director and the Town Board lack standing to question the validity of the agreement (cf. Matter of Board of Coop. Educational Servs. Second Supervisory Dist., Westchester County v. Buckley, 15 N.Y.2d 971, 259 N.Y.S.2d 858, 207 N.E.2d 528; Board of Educ., Union Free School Dist. No. 6 v. Board of Co-op. Educational Serv., 25 A.D.2d 864, 270 N.Y.S.2d 109); (2) that the Town may not, by its zoning ordinance, prevent the location of a school within its borders (Union Free School Dist. No. 14 of Town of Hempstead, Nassau County v. Village of Hewlett Bay Park, 279 App.Div. 618, 107 N.Y.S.2d 858; cf. ...