Matter of Haberman v. Zoning Board of Appeals of City of Long Beach

• Decision Date: 01 July 2008
• Docket Number: No. 2004-05680,2004-05680
• Parties: In the Matter of SINCLAIR HABERMAN et al., Appellants-Respondents, v. ZONING BOARD OF APPEALS OF CITY OF LONG BEACH et al., Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

53 A.D.3d 490

861 N.Y.S.2d 745

2008 NY Slip Op 6154

In the Matter of SINCLAIR HABERMAN et al., Appellants-Respondents, v. ZONING BOARD OF APPEALS OF CITY OF LONG BEACH et al., Respondents-Appellants.

No. 2004-05680

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

Decided July 1, 2008.

In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the City of Long Beach dated December 29, 2003, which revoked a building permit previously issued to the petitioners/plaintiffs on August 12, 2003, and action, inter alia, for a judgment declaring that the petitioners/plaintiffs are entitled to the building permit, the petitioners/plaintiffs appeal, by permission and as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Davis, J.), dated May 17, 2004, as remitted the matter to the Zoning Board of Appeals of the City of Long Beach for further consideration, and the Zoning Board of Appeals of the City of Long Beach, Lenny Torres, Marcel Weber, Michael Fina, Stuart Banschick, Lorraine Divone, Michael Leonetti, City of Long Beach, Scott A. Kemins, and Samuel Ungar cross-appeal, and Xander Corp. separately cross-appeals, by permission and as limited by their respective briefs, from so much of the same order as denied their motions to dismiss the combined petition and complaint except the fourth cause of action insofar as asserted against the City of Long Beach, and granted the combined petition and complaint to the extent of annulling the determination of the Zoning Board of Appeals of the City of Long Beach. By decision and order dated December 5, 2006, this Court, upon reargument, reversed the order insofar as cross-appealed

from, denied the petition, dismissed the proceeding on the merits, dismissed the complaint except the fourth cause of action insofar as asserted against the City of Long Beach, confirmed the determination of the Zoning Board of Appeals of the City of Long Beach, remitted the matter to the Supreme Court, Nassau County, for the entry of a judgment declaring that the petitioners/plaintiffs were not entitled to the building permit issued on August 12, 2003 and, further, dismissed the appeal as academic in light of our determination on the cross appeals (see Matter of Haberman v Zoning Bd. of Appeals of City of Long Beach, 35 AD3d 465 [2006]). In an opinion dated November 19, 2007 the Court of Appeals reversed the decision and order of this Court insofar as appealed from, held that the attorney for the Zoning Board of Appeals of the City of Long Beach had the authority to extend the time to apply for building permits as set forth in a stipulation of settlement dated March 8, 1989 and remitted the matter to this Court for consideration of the issues raised but not determined previously by this Court (see Matter of Haberman v Zoning Bd. of Appeals of City of Long Beach, 9 NY3d 269 [2007]). Justices Carni and Balkin have been substituted for Justices Adams and Lunn (see 22 NYCRR 670.1 [c]).

Ordered that the order is modified, on the law, (1) by deleting the provision thereof, in effect, denying that branch of the motion of the City of Long Beach which was to dismiss the sixth cause of action, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof annulling the determination of the Zoning Board of Appeals of the City of Long Beach which revoked the building permit previously issued on August 12, 2003 and remitting the matter to the Zoning Board of Appeals of the City of Long Beach, and substituting therefor a provision permitting the respondents/defendants to interpose an answer to the combined petition and complaint; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

In August 1989, pursuant to a stipulation of settlement dated March 8, 1989 (hereinafter the stipulation) setting forth certain obligations to be fulfilled by ...