Annandale, Inc. v. Brienza

1 A.D.2d 785, 148 N.Y.S.2d 17, 1956 N.Y. App. Div. LEXIS 6597

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1956
• Status: Published

Opinion

Appeal from an .order directing appellant to issue a permit for the erection of a residence building on respondent’s lot. . The lot abuts on an improved county highway, and the proposed building would be erected about 400 feet back from this highway. Appellant contends that the order is contrary to section 280-a of the Town Law in that there is no proof of access to the structure within the meaning of that statute. Respondent contends that inasmuch as the lot has frontage on the county highway, and the legal right of access thereby exists, the building permit should issue as of right. Order reversed, without costs, and the matter remitted to the Special Term for the taking of proof in respect of physical access from the county highway to the proposed structure. The proceeding is in the nature of mandamus, and a positive order may be made only upon a showing of clear legal right to the relief. In the present ease, the unusual distance between the highway and the structure emphasizes the necessity of construing the statute as requiring physical access to the structure and not merely access to the portion of the lot which fronts on the highway. The purpose of the statute appears to be in the public interest and primarily to provide reasonable means of coping with fires and other emergencies. The statute does not require any particular form of physical access, merely any reasonable means. Nolan, P. J., Wenzel, Beldoek, Ughetta and Hallinan, JJ., concur.