Belluscio v. Klein

65 A.D.2d 702, 409 N.Y.S.2d 751, 1978 N.Y. App. Div. LEXIS 13466

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1978
• Status: Published

Opinion

—Judgment, Supreme Court, New York County, entered April 12, 1977, annulling the determination of the Board of Standards and Appeals and remanding the matter for further action, is reversed, on the law and vacated, and the petition in this article 78 proceeding is dismissed, without costs and without disbursements. We do not consider that the action of the Board of Standards and Appeals in granting this minor variance on account of hardship was arbitrary, capricious or illegal, and accordingly we are not justified in interfering with the board’s action. The variance involved an encroachment of about eight inches onto the required front yard of appellants’ property as well apparently as a roofed over stoop area. It does not appear to us that this was a case in which appellants acted in bad faith and deliberately created the hardship for the purpose of laying a basis for a requested variance. Rather we think the board was justified in thinking that appellants acted in good faith and that to require appellants to tear down the improvement would be disproportionate to the minor, zoning violation involved. No costs are awarded to appellants in view of the complete failure to furnish record references in their brief. Concur — Kupferman, J. P., Birns, Silverman and Sullivan, JJ.; Fein, J., dissents and would affirm for the reasons stated by Riccobono, J., at Special Term.