North Am. Holding Corp. v. Murdock

• Decision Date: 09 December 1958
• Citation: 6 A.D.2d 596,180 N.Y.S.2d 436
• Parties: Application of NORTH AMERICAN HOLDING CORP., Petitioner-Respondent, for an order of certiorari v. Harris H. MURDOCK, Edwin W. Kleinert, Sean P. Keating and P. Joseph Connolly, constituting the Board of Standards and Appeals of the City of New York, Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 436

180 N.Y.S.2d 436

6 A.D.2d 596

Application of NORTH AMERICAN HOLDING CORP.,

Petitioner-Respondent, for an order of certiorari v. Harris H. MURDOCK, Edwin W. Kleinert, Sean P. Keating and P.

Joseph Connolly, constituting the Board of

Standards and Appeals of the City of New

York, Respondents-Appellants.

Supreme Court, Appellate Division, First Department.

Dec. 9, 1958.

Alfred Weinstein, New York City, of counsel (Seymour B. Quel and Joseph Entel, New York City, with him on the brief; Charles H. Tenney, Corp. Counsel, New York City, attorney), for respondents-appellants.

Charles Lamb, New York City, of counsel (Lamb & Lamb, New York City, attorneys), for petitioner-respondent.

Before BOTEIN, P. J., and BREITEL, MARTIN M. FRANK, McNALLY and BERGAN, JJ.

BREITEL, Justice.

The Board of Standards and Appeals of the City of New York appeals from an order at Special Term which set aside the denial by the Board of petitioner's application for a use variance under the zoning resolution. The order remitted the matter to the Board for a rehearing in accordance with the views expressed in the opinion at Special Term.

The property involved, improved with an apartment house, is located on the southwest corner of the Grand Concourse and East 167th Street in The Bronx. The Board had denied an application to permit the owner to convert to commercial use certain ground floor space on the side street within 10 feet of the Grand Concourse. The area was zoned for residential use, and prior applications made in 1936 and 1954 had also been denied. The dominant issues in the most recent variance proceeding were whether the change in the neighborhood and the need for a residential buffer zone for that section of the Grand Concourse had affected the owner's case for a variance. An issue which had pervaded all three applications for a variance was the fact that the space in question might not, under the law, be used for residential space. As a consequence the owner urged that it was deprived unjustly and unnecessarily of any revenue from that part of its building. Special Term in annulling the determination held that the Board had erred in its interpretation of the law and the facts.

The Board argues that the holding at Special Term may not be sustained on the ground that there was no basis for holding its action to be arbitrary and capricious; that in any event it had not misinterpreted the facts or erred in applying the law. The merits of the question, however may not be reached. At the threshold, it appears that the appeal must be dismissed. An intermediate order rather than a final order is involved, and leave was not first obtained for such an appeal from Special Term pursuant to the provisions of Section 1304 of the Civil Practice Act.

On the question of appealability the matter turns on whether a proceeding to review a determination of the Board of Standards and Appeals is controlled exclusively by the appropriate sections of the City Charter and the Administrative Code (N. Y. City Charter, § 668, subd. e; N. Y. City Adm. Code, § 668e-1.0), or whether the provisions of Article 78 of the Civil Practice Act are also applicable. The city statutes provide for a review of Board determinations by certiorari. Article 78, on the other hand, abolishes, among other things, writs of certiorari, and sets up a uniform procedure for what used to be termed special proceedings in certiorari, mandamus, and prohibition (Third Annual Report of N. Y. Judicial Council, 1937, p. 133, et seq.). A subsidiary issue is whether the order entered at Special Term is intermediate or final in character.

It is now well settled in the First and Second Departments, the only departments in which the issue is likely to arise, that Article 78 applies to certiorari proceedings brought to review determinations of the city Board of Standards and Appeals (Smith v. Board of Standard and Appeals, 2 A.D.2d 67, 153 N.Y.S.2d 131. Cf. Hempstead Bottling Works Corp. v. Patterson, 282 App.Div. 1063, 126 N.Y.S.2d 619). In the Smith case, Mr. Justice Bergan writing for this Court said:

'The judicial process here is not the petition; it is the order; or, in the traditional practice in certiorari, the writ. To the extent that the Administrative Code is not specific in its procedural directions, the procedure set up by Civil Practice Act, Article 78 controls, since it is there provided that, whenever 'in any statute reference is made to a writ or order of certiorari * * * such reference shall, so far as applicable, be deemed to refer to the proceeding authorized by this article'. C.P.A. § 1283' (2 A.D.2d at page 69, 153 N.Y.S.2d at page 134).

In parallel situations the Second Department took a similar view (Fammler v. Board of Zoning Appeals of Town of Hempstead, 254 App.Div. 777, 4 N.Y.S.2d 760; Muller v. Zoning Bd. of Appeals, 270 App.Div. 824, 60 N.Y.S.2d 98; Kohnberg v. Murdock (Board of Standards and Appeals), 4 A.D.2d 750, 164 N.Y.S.2d 870). Properly read, the comments in one of the leading texts in the field are not contradictory (McGoldrick, Graubard and Horowitz, Building Regulation in New York City [1944], p. 519 et seq.). All that is involved is that the city statutes, in so far as they have specific provisions, serve to modify any counterpart provisions in Article 78. Nor does the case of Houston Theatre Corp. v. Board of Standards & Appeals of City of New York, 285 App.Div. 866, 137 N.Y.S.2d 625, avail appellants, for there, concededly, the issue of appealability was never raised or considered.

Since Article 78 is applicable, the appeal must be dismissed, if the order appealed from is intermediate rather than final. This would follow because of the failure by appellant Board to first obtain leave to appeal as required by Section 1304 of the Civil Practice Act. ¹

The mere fact that a matter is remitted to an administrative agency for further action following annulment of its determination on review in the courts does not of itself deprive the order of finality. The question always is whether the further action is merely ministerial or whether the agency still has the power and the duty to exercise quasi-judicial responsibility with respect to the issues. If all that is left for the agency to do is ministerial, then the order is final even though it contains a direction for remitter to the agency. If,...