Filipowski v. Zoning Bd. of Appeals of Vill. of Greenwood Lake
| Decision Date | 19 October 2010 |
| Parties | In the Matter of Adam J. FILIPOWSKI, et al., appellants, v. ZONING BOARD OF APPEALS OF VILLAGE OF GREENWOOD LAKE, respondent. |
| Court | New York Supreme Court — Appellate Division |
Francis L. Filipowski, Rye Brook, N.Y., for appellants.
Fabricant Lipman & Frishberg, PLLC, Goshen, N.Y. (Alan S. Lipman of counsel), for respondent.
FRED T. SANTUCCI, J.P., RUTH C. BALKIN, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ.
In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Village of Greenwood Lake dated September 18, 2008, which, after a hearing, denied the petitioners' application for several area variances, the petitioners appeal (1) as limitedby their brief, from stated portions of an order of the Supreme Court, Orange County (Owen, J.), dated April 23, 2009, which, inter alia, granted that branch of the motion of the Zoning Board of Appeals of the Village of Greenwood Lake which was to dismiss the petition pursuant to CPLR 3211(a) and CPLR 7804(f) onthe grounds of res judicata and collateral estoppel, and (2) a judgment of the same court entered May 21, 2009, which, upon the order, dismissed the proceeding.
ORDERED that the time of the Zoning Board of Appeals of the Village of Greenwood Lake to answer the petition is extended until 20 days after service upon it of a copy of this decision and order.
The appeal from the order must be dismissed as no appeal lies as of right from an intermediate order in a proceeding pursuant to CPLR article 78 ( see CPLR 5701[b][1] ), and we decline to grant leave to appeal in view of the fact that a final judgment has been entered. The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a] ).
The Supreme Court improperly dismissed the proceeding on the grounds of res judicata and collateral estoppel. The Zoning Board of Appeals of the Village of Greenwood Lake (hereinafter the Zoning Board) did not rely upon its prior denial of the appellants' variance application for the subject property or explicitly invoke the doctrine of res judicata or collateral estoppel as the basis for the denial of the appellants' application. Judicial review of an administrative determination is limited to the grounds...
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