113 Hillside Avenue Corp. v. Village of Westbury

27 A.D.2d 858, 278 N.Y.S.2d 558, 1967 N.Y. App. Div. LEXIS 4557

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 1967
• Status: Published

Opinion

Judgment of the Supreme Court, Nassau County, entered June 20, 1966, modified, on the law, by (1) striking out its first decretal paragraph, which granted defendants’ motion to dismiss the complaint as to building permit No. 6578 and (2) substituting therefor a declaration that the issuance of said permit by the defendant Building Inspector of the defendant village was unauthorized and unlawful. As so modified, judgment affirmed insofar as appealed from, without costs. The trial court’s findings of fact are affirmed. The Board of Trustees of the defendant village was without power to review the acts of the Building Inspector in granting the permits; that power is vested exclusively in the Board of Appeals of the village. The purported revocation was ineffective (Village Law, § 179-b; Westbury Zoning Ordinance, §§ 50-150, 50-154; see Matter of Kalen, 248 App. Div. 777). The remedy of direct administrative review of the action by the Board of Trustees was not available; hence plaintiff’s suit was properly brought. Plaintiff sought a declaration that both permits issued to it were in full force and effect. However, the application for permit No. 6578 did not conform to the “front yard” requirements of the Zoning Ordinance of the village. The issuance of this permit by the Building Inspector was, therefore, unlawful, and the Special Term so decided. Dismissal of the complaint, however, was incorrect; defendants were entitled to a declaration that the.permit was invalid (Lanza v. Wagner, 11 N Y 2d 317, 334, app. dsmd. 371 U. S. 74; Martin v. State Idq. Auth., 43 Misc 2d 682, 690, affd. 15 N Y 2d 707). Ughetta, Acting P. J. Christ, Rabin, Benjamin and Munder, JJ., concur.