Benigno v. Cohalan

357 N.E.2d 1001, 40 N.Y.2d 880, 389 N.Y.S.2d 346, 1976 N.Y. LEXIS 3058

• Court: New York Court of Appeals
• Decided: October 19, 1976
• Status: Published

Opinion

Memorandum. The order of the Appellate Division should be affirmed.

As noted by the Appellate Division, in consequence of failure of publication as required by section 265 of the Town Law, the zoning resolution dated November 11, 1971 never became effective. This consequence is not altered by appellant’s assertions with respect to the circumstances of such nonpublication, or the possibility that remedies therefor may have existed by way of mandamus or self-help. Nor is the doctrine of "vested rights” applicable here to bolster appellant’s position.

Appellant has, however, been restored to his former position because, as we are informed, the town board has executed a release of the declaration of covenants and restrictions recorded by him in anticipation of an effective zoning ordinance.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order affirmed, with costs, in a memorandum.