Weiss v. Village of Lindenhurst
| Decision Date | 29 July 1955 |
| Citation | 144 N.Y.S.2d 228 |
| Parties | Esther WEISS v. VILLAGE OF LINDENHURST et al., etc. |
| Court | New York Supreme Court |
S. Martin Adelman, Bay Shore, for petitioner.
Arthur Cromarty, Amityville, for respondents.
Proceeding under article 78 of the Civil Practice Act to compel respondents to grant to petitioner a building permit and a certificate of occupancy.
Since this proceeding must be disposed of on a procedural ground, no fruitful purpose would be served by stating the facts relating to the merits. Petitioner did not appeal to the village board of appeals from the determination of respondent Theis, Building Inspector of the village. Since there is no question in the mind of this court that said respondent is an 'administrative official' within the meaning of section 179-b of the Village Law, Building Zone Ordinance of the Village of Lindenhurst, Sec. 900; see Village of Attica v. Day, 134 Misc. 882, 885 et seq., 236 N.Y.S. 607, 610, affirmed 230 App.Div. 776, 243 N.Y.S. 915, it was incumbent upon petitioner to appeal to the board of appeals before instituting this proceeding, for 'Mandamus will not issue where another remedy is available or provided by law.' Towers Management Corp. v. Thatcher, 271 N.Y. 94, 97, 2 N.E.2d 273, 274. Another remedy, towit, an appeal to the board of appeals, is made available by section 179-b of the Village Law and section 1002 of the Building Zone Ordinance of the Village of Lindenhurst. Such remedy must be pursued even if petitioner is correct in her contention (petition, par. 8) that there 'is no question by that (her) building application complies with the law and is for a legal use.' See Braunsdorf v. Kelleher, 202 Misc. 471, 475, 111 N.Y.S.2d 507.
The petition is accordingly dismissed without prejudice to the institution of another similar proceeding after petitioner has obtained a determination from the village board of appeals.
Settle order.
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