Prudco Realty Corp. v. Palermo

• Decision Date: 11 April 1983
• Docket Number: S.F. S
• Citation: 93 A.D.2d 837,461 N.Y.S.2d 58
• Parties: In the Matter of PRUDCO REALTY CORP., Appellant, v. Gerald E. PALERMO, Chairman et al., Respondents;hopping Center, Inc., Intervenor-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 58

461 N.Y.S.2d 58

93 A.D.2d 837

In the Matter of PRUDCO REALTY CORP., Appellant, v. Gerald E. PALERMO, Chairman et al., Respondents S.F. Shopping Center, Inc., Intervenor-Respondent.

Supreme Court, Appellate Division Second Department.

April 11, 1983.

Dollinger, Gonski & Grossman, Carle Place (Matthew Dollinger, Carle Place, of counsel), for appellant.

Martin J. Kerins, Town Atty., Patchogue (Sherri Ann Levy, Hauppauge, of counsel), for respondents.

Davidow, Davidow, Weisberg & Wismann, Patchogue (William A. Wismann, Patchogue, of counsel), for intervenor-respondent.

Before DAMIANI, J.P., and TITONE, MANGANO and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Town of Brookhaven, dated June 24, 1981, which granted the application of the intervenor-respondent S.F. Shopping Center, Inc. for a certificate of existing use for the operation of a gasoline service station at the southeast corner of Middle Country Road and Washington Avenue, Centereach, located in a J-2 business district, petitioner appeals from a judgment of the Supreme Court, Suffolk County, dated January 15, 1982, which dismissed the proceeding.

Judgment reversed, on the law, with costs payable to petitioner by intervenor-respondent S.F. Shopping Center, Inc., petition granted, determination annulled and application denied.

Special Term erred in holding that petitioner lacked standing to bring the instant proceeding. As an owner of property located within 200 feet of the subject premises, petitioner was, as a matter of law, an "aggrieved" person on whom subdivision 7 of section 267 of the Town Law conferred the right to seek judicial review of the determination of the respondent Zoning Board of Appeals of the Town of Brookhaven (Lashins, Inc. v. Griffin, 132 N.Y.S.2d 896; Bayport Civic Assn. v. Koehler, 138 N.Y.S.2d 524; Matter of Gerling v. Board of Zoning Appeals, 11 Misc.2d 84, 167 N.Y.S.2d 358, revd. on other grounds 6 A.D.2d 247, 176 N.Y.S.2d 871; Matter of Holowka v. Zoning Bd. of Appeals of Town of Greece, 80 Misc.2d 738, 364 N.Y.S.2d 403; Matter of Manor Woods Assn. v. Randol, 29 A.D.2d 778, 287 N.Y.S.2d 734; Matter of Tuxedo Conservation & Taxpayers Assn. v. Town Bd. of the Town of Tuxedo, 69 A.D.2d 320, 418 N.Y.S.2d 638; Freundlich v. Town Bd. of Southampton, 73 A.D.2d 684, 422 N.Y.S.2d 215, affd. 52 N.Y.2d 921, 437 N.Y.S.2d 664, 419 N.E.2d 342; Matter of Grasmere Homeowner's Assn. v. Introne, 84 A.D.2d 778, 443 N.Y.S.2d 956; Glen Head-Glenwood Landing Civic Council v. Town of Oyster Bay, 88 A.D.2d 484, 453 N.Y.S.2d 732; Matter of Douglaston Civic Assn. v. Galvin, 36 N.Y.2d 1, 364 N.Y.S.2d 830, 324 N.E.2d 317).

Special Term erred further in holding that the determination of the respondent zoning board of appeals was legally correct and supported by the evidence before it. The town's zoning ordinance provides: "Whenever a nonconforming use has been discontinued, abandoned or not used for a period of one (1) year or more, such use shall not thereafter be reestablished and any future use shall be in conformity with the provisions of this Ordinance." (Code of the Town of Brookhaven, § 85-431, subd. A, par. [5].) The evidence showed that the subject premises had not been operated as a gasoline service station for a period of at least four years, and had been leased to parties who used them in conformity with the provisions of the...