In the Matter of Abate v. City of Yonkers

• Decision Date: 07 September 2004
• Docket Number: 2003-03450.,2003-03454.
• Parties: In the Matter of SAMUEL J. ABATE, JR., et al., Respondents, v. CITY OF YONKERS et al., Appellants-Respondents, TOWN OF GREENBURGH, Respondent-Appellant, et al., Respondents. (Proceeding No. 1.) In the Matter of TOWN OF GREENBURGH, Respondent-Appellant, v. CITY COUNCIL OF THE CITY OF YONKERS et al., Appellants-Respondents, et al., Respondents, and VILLAGE OF ARDSLEY, Intervenor-Respondent. (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

10 A.D.3d 605

781 N.Y.S.2d 667

2004 NY Slip Op 06491

In the Matter of SAMUEL J. ABATE, JR., et al., Respondents, v. CITY OF YONKERS et al., Appellants-Respondents,

TOWN OF GREENBURGH, Respondent-Appellant, et al., Respondents. (Proceeding No. 1.)

In the Matter of TOWN OF GREENBURGH, Respondent-Appellant, v. CITY COUNCIL OF THE CITY OF YONKERS et al., Appellants-Respondents, et al., Respondents, and VILLAGE OF ARDSLEY, Intervenor-Respondent. (Proceeding No. 2.)

2003-03450.

2003-03454.

Appellate Division of the Supreme Court of the State of New York, Second Department.

September 7, 2004.

In two related proceedings pursuant to CPLR article 78, inter alia, to prohibit the City of Yonkers from issuing any additional building permits in connection with a commercial development project know as the Austin Avenue Shopping Center Development (Proceeding No. 1), and to review the 1999 Findings Statement made by the City Council of the City of Yonkers in connection with the subject development project pursuant to the State Environmental Quality Review Act (ECL art 8) (Proceeding No. 2), (1) the City of Yonkers, the City Council of the City of Yonkers, and the City of Yonkers Planning Bureau appeal, and Morris Industrial Builders, L.P., and Morris Companies, Yonkers Industrial Development Agency, and Costco Wholesale Corporation and Stew Leonard's Yonkers, LLC, separately appeal from (a) stated portions of an order and judgment (one paper) of the Supreme Court, Westchester County (DiBlasi, J.), entered March 11, 2003, and (b) a supplemental order of the same court dated March 17, 2003, amending the order and judgment, which, inter alia, granted that branch of the petition in Proceeding No. 1 which was to prohibit further development of the project site until a further de novo supplemental review pursuant to the State Environmental Quality Review Act is conducted, granted those branches of the petition in Proceeding No. 2 which were to invalidate the 1999 Findings Statement made by City Council of the City of Yonkers, directed a de novo supplemental review of the project pursuant to the State Environmental Quality Review Act, and completion of certain "Interchange Improvements" in connection with the project, and conditionally invalidated the certificates of occupancy which were denominated "temporary certificates of occupancy" issued to Stew Leonard's Yonkers, LLC, and Costco Wholesale Corp., in connection with the project if the "Interchange Improvements" were not completed by November 17, 2003, and the de novo supplemental review pursuant to the State Environmental Quality Review Act was not completed by June 30, 2004, and (2) the Town of Greenburgh cross-appeals, as limited by its brief, (a) from so much of the same order and judgment (one paper), and the supplemental order, as granted, upon its default in that proceeding, that branch of the petition in Proceeding No. 1 which was to annul and vacate an order and stipulation of settlement dated February 11, 1998, entered into by the parties in an action entitled Town of Greenburgh v City of Yonkers, commenced in the Supreme Court, Westchester County, under Index No. 121/98, and (b) from the supplemental order, amending the order and judgment.

Ordered that the cross appeal by the Town of Greenburgh is dismissed, without costs or disbursements; and it is further,

Ordered that the order and judgment is modified, on the law, by deleting the ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth decretal paragraphs thereof, and substituting therefor a provision dismissing Proceeding No. 2 as academic; as so modified, the order and judgment is affirmed insofar as reviewed; and it is further Ordered that the supplemental order is modified, on the law, by deleting the second, third, and fourth decretal paragraphs...