Redemption Church of Christ of Apostolic Faith, Inc. v. Williams, 1
| Decision Date | 29 October 1981 |
| Docket Number | No. 2,No. 1,1,2 |
| Citation | 84 A.D.2d 648,444 N.Y.S.2d 305 |
| Parties | In the Matter of the REDEMPTION CHURCH OF CHRIST OF the APOSTOLIC FAITH, INC., Respondent, v. Graham WILLIAMS et al., Constituting the City of Troy Zoning Board of Appeals, et al., Appellants. (Action) CITY OF TROY, Appellant, v. REDEMPTION CHURCH OF CHRIST OF the APOSTOLIC FAITH, INC., et al., Respondent. (Action) |
| Court | New York Supreme Court — Appellate Division |
Thomas V. Kenney, Jr., Troy, for appellants.
Sanford N. Finkel, Troy, for respondent.
Before SWEENEY, J.P., and MAIN, MIKOLL, WEISS and HERLIHY, JJ.
Appeal, in Action No. 1, from an order of the Supreme Court at Special Term, entered March 14, 1980 in Rensselaer County, which, in a proceeding pursuant to CPLR article 78, denied respondents' motion to dismiss petitioner's application for relief from stipulations in a special use permit; and which granted petitioner's cross motion requiring respondents to answer the petition and furnish a transcript of the underlying proceedings within 30 days.
Appeal, in Action No. 2, from an order of the Supreme Court at Special Term, entered July 8, 1980 in Rensselaer County, which denied plaintiff's motion for summary judgment.
These actions involve the use and occupancy of a former nursing home in Troy acquired by the petitioner church in 1978, for use as a religious facility and residence for missionaries. Respondent zoning board of appeals, after initial denial by the superintendent of buildings, had granted a special use permit predicated upon compliance with seven stipulated conditions. In an article 78 proceeding commenced on September 14, 1978, petitioner sought review challenging two of the conditions. Instead of answering the petition, respondents moved pursuant to CPLR 7804 (subd. for an order dismissing the petition on the grounds (1) the special use permit became void because of noncompliance with the conditions contained in the permit and, (2) petitioner failed to secure a building permit within six months of the issuance of the special use permit. Petitioner then cross-moved for an order granting the relief requested, or, in the alternative, requiring respondents to answer the petition and furnish a certified copy of the transcript of the proceedings before the zoning board of appeals. Special Term denied respondents' motion to dismiss and granted petitioner's cross motion to compel service of an answer including a certified transcript of the proceedings before the zoning board of appeals. Respondents have appealed. However, this appeal from an intermediate order in an article 78 proceeding does not lie as of right; nor does it appear that permission for the taking thereof has been sought or granted. The appeal must, therefore, be dismissed (see CPLR 5701, subd. par. 1; Matter of Wallace v. Wyandanch Union Free School Dist., 58 A.D.2d 813, 396 N.Y.S.2d 421; Hawley v. Town of Aurora, 41 A.D.2d 588, 340 N.Y.S.2d 10). We note that having fully reviewed the record before us, we would have affirmed the decision at Special Term had permission to appeal been granted upon proper request. The petition sets forth allegations of fact which, in the absence of an answer, stand uncontradicted and state a prima facie entitlement to the relief sought (Matter of Lichtensteiger v. Housing & Development Administration, 40 A.D.2d 810, 338 N.Y.S.2d 201; Matter of Grimm v. City of Buffalo, 8 A.D.2d 689, 184 N.Y.S.2d 868; 6 N.Y.Jur.2nd, Article 78, § 210, p. 94).
In December, 1979, the City of Troy commenced Action No. 2 for a permanent injunction to prohibit the church from...
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