Bogey's Emporium, Inc. v. City of White Plains

Appellate Division of the Supreme Court of New York

Bogey's Emporium, Inc. v. City of White Plains

114 A.D.2d 363, 493 N.Y.S.2d 880, 1985 N.Y. App. Div. LEXIS 53046

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 7, 1985

StatusPublished

Cited by5 cases

This text of 114 A.D.2d 363 (Bogey's Emporium, Inc. v. City of White Plains) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bogey's Emporium, Inc. v. City of White Plains, 114 A.D.2d 363, 493 N.Y.S.2d 880, 1985 N.Y. App. Div. LEXIS 53046 (N.Y. Ct. App. 1985).

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Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination denying petitioner’s application for a cabaret license, the appeal is from a judgment of the Supreme Court, Westchester County (Owen, J.), dated June 21, 1985, which granted the petition and directed appellants to issue a cabaret license to petitioner.

Judgment affirmed, with costs.

Petitioner applied on or about February 1, 1984 for a cabaret license to continue a nonconforming use. The six-month period provided for by White Plains Zoning Ordinance § 4.3.2.S, within which any nonconforming use must resume or be deemed discontinued, was tolled until April 12, 1984, the date on which a bankruptcy court ordered a trustee in bankruptcy to deliver a lease to petitioner, by operation of the automatic stay provision of 11 USC § 362 (see, Matter of IDH Realty v Incorporated Vil. of Mineóla, 16 Bankr 55). Therefore, appellants’ November 5, 1984 denial of petitioner’s application was arbitrary and capricious, because it was only appellants’ own retention of the application which prevented resumption of cabaret activity within six months from the date the stay terminated. Lazer, J. P., O’Connor, Niehoff and Kooper, JJ., concur.

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—In a proceeding pursuant to CPLR article 78 to review a determination denying petitioner’s application for a cabaret license, the appeal is from a judgment of the Supreme Court, Westchester County (Owen, J.), dated June 21, 1985, which granted the petition and directed appellants to issue a cabaret license to petitioner.

Judgment affirmed, with costs.

Petitioner applied on or about February 1, 1984 for a cabaret license to continue a nonconforming use. The six-month period provided for by White Plains Zoning Ordinance § 4.3.2.S, within which any nonconforming use must resume or be deemed discontinued, was tolled until April 12, 1984, the date on which a bankruptcy court ordered a trustee in bankruptcy to deliver a lease to petitioner, by operation of the automatic stay provision of 11 USC § 362 (see, Matter of IDH Realty v Incorporated Vil. of Mineóla, 16 Bankr 55). Therefore, appellants’ November 5, 1984 denial of petitioner’s application was arbitrary and capricious, because it was only appellants’ own retention of the application which prevented resumption of cabaret activity within six months from the date the stay terminated. Lazer, J. P., O’Connor, Niehoff and Kooper, JJ., concur.

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Bluebook (online)

114 A.D.2d 363, 493 N.Y.S.2d 880, 1985 N.Y. App. Div. LEXIS 53046, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bogeys-emporium-inc-v-city-of-white-plains-nyappdiv-1985.

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