Feder v. Town of Islip Zoning Bd. of Appeals

• Decision Date: 13 February 2014
• Citation: 114 A.D.3d 782,980 N.Y.S.2d 537,2014 N.Y. Slip Op. 00998
• Parties: In the Matter of Jerome FEDER, et al., petitioners-respondents, v. TOWN OF ISLIP ZONING BOARD OF APPEALS, respondent-appellant, Barry Wetherall, et al., nonparty-appellants, Richard I. Scheyer, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 782

980 N.Y.S.2d 537

2014 N.Y. Slip Op. 00998

In the Matter of Jerome FEDER, et al., petitioners-respondents,

v. TOWN OF ISLIP ZONING BOARD OF APPEALS, respondent-appellant,Barry Wetherall, et al., nonparty-appellants,Richard I. Scheyer, etc., et al., respondents.

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

Feb. 13, 2014.

Robert L. Cicale, Town Attorney, Islip, N.Y. (Christopher R. Nicolia and Janessa Tratto of counsel), for respondent-appellant, and for respondents.

Shlimbaum & Shlimbaum, Islip, N.Y. (Lark J. Shlimbaum of counsel), for nonparty-appellants.

J. Lee Snead, Bellport, N.Y., for petitioners-respondents.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, PLUMMER E. LOTT, and SYLVIA O. HINDS–RADIX, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Islip dated September 9, 2008, which, after a hearing, granted the application for area variances made by nonparties Barry Wetherall and Harriet Wetherall, inter alia, for a shed and outdoor shower stall, (1) the Zoning Board of Appeals of the Town of Islip appeals, as limited by its brief, from stated portions of an order of the Supreme Court, Suffolk County (Mayer, J.), dated November 15, 2011, which, inter alia, granted that branch of the petitioners' motion which was to compel the Building Commissioner for the Town of Islip to revoke that portion of a certificate of compliance which relates to a shed and outdoor shower stall on property owned by nonparties Barry Wetherall and Harriet Wetherall, and (2) the Zoning Board of Appeals of the Town of Islip and nonparties Barry Wetherall and Harriet Wetherall separately appeal, as limited by their respective briefs, from so much of a judgment of the same court entered April 3, 2012, as granted those branches of the petition which were to annul so much of the determination as granted the area variances for a shed and outdoor shower stall on property owned by nonparties Barry Wetherall and Harriet Wetherall, annulled those portions of the determination, remitted the matter to the Zoning Board of Appeals for the Town of Islip, and directed the Building Commissioner for the Town of Islip to revoke that portion of the certificate of compliance which relates to a shed and outdoor shower stall on property owned by nonparties Barry Wetherall and Harriet Wetherall.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, that branch of the petitioners' motion which was to compel the Building Commissioner for the Town of Islip to revoke that portion of the certificate of compliance which relates to a shed and outdoor shower stall on property owned by nonparties Barry Wetherall and Harriet Wetherall is denied, the order is modified accordingly, those branches of the petition which were to annul so much of the determination as granted the area variances for a shed and outdoor shower stall on property owned by nonparties Barry Wetherall and Harriet Wetherall are denied, and those portions of the proceeding are dismissed.

The appeal from the intermediate order dated November 15, 2011, must be dismissed, since an order made in CPLR article 78 proceeding is not appealable as of right ( seeCPLR 5701[b][1] ), and any possibility of taking a direct appeal therefrom terminated with the entry of the judgment in the proceeding ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( seeCPLR 5501[a][1] ).

By determination dated September 9, 2008, made after a hearing, the Zoning Board of Appeals for the Town of Islip (hereinafter the Z.B.A.) granted an application made by nonparties Barry Wetherall and Harriet Wetherall (hereinafter the Wetheralls) for area variances for a shed, outdoor shower stall, and garbage bin. The petitioners commenced this proceeding to annul the Z.B.A.'s determination. Although the petition included the Wetheralls as respondents in the proceeding, by order dated April 28, 2010, the Supreme Court granted the Wetheralls' motion to dismiss the proceeding insofar as asserted against them, finding that the petitioners' attempt to serve the Wetheralls pursuant to the CPLR 308(4) “affix and mail” method was defective as a matter of law. On December 16, 2010, the Supreme Court issued a decision, made after a hearing, to annul the Z.B.A.'s determination, finding that it had failed to consider the required factors set forth in Town Law § 267–b(3)(b).

After this proceeding was commenced, and before the judgment annulling the Z.B.A.'s determination was entered, the Department of Planning and Development for the Town of Islip issued a certificate of compliance, inter alia, for the shed and outdoor shower stall on the Wetheralls' property. By order to show cause dated March 15, 2011, three months after the Supreme Court issued its decision annulling the Z.B.A.'s determination, the petitioners moved to compel the Building Commissioner for the Town of Islip (hereinafter the Building Commissioner) to revoke the certificate of compliance. The Wetheralls were served with the order to show cause and appeared before the court to oppose the motion. The Supreme Court granted that branch of the petitioners' motion which was to compel the Building Commissioner to revoke that portion of the certificate of compliance which relates to the shed and outdoor shower stall.

A party whose interest may be adversely affected by a potential judgment must be made a party to a CPLR article 78 proceeding ( seeCPLR 1001[a]; Matter of Karmel v. White Plains Common Council, 284 A.D.2d...