Borko v. Giordano

Appellate Division of the Supreme Court of New York

Borko v. Giordano

29 A.D.2d 546, 285 N.Y.S.2d 311, 1967 N.Y. App. Div. LEXIS 2801

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

DecidedDecember 11, 1967

StatusPublished

This text of 29 A.D.2d 546 (Borko v. Giordano) 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

Borko v. Giordano, 29 A.D.2d 546, 285 N.Y.S.2d 311, 1967 N.Y. App. Div. LEXIS 2801 (N.Y. Ct. App. 1967).

Pincite

Opinion

In a proceeding pursuant to CPLR article 78 to annul [547]*547respondents’ determination designating Public School 170, Queens, as a feeder school for Intermediate School 8 and for related injunctive relief, petitioners appeal from a judgment of the Supreme Court, Queens County, dated August 29, 1967, which granted respondents’ motion, made before answer, to dismiss the petition for insufficiency on its face. Judgment reversed, on the law, without costs, and motion denied with leave to respondents to answer the petition within 10 days after service of a copy of the order entered hereon, with notice of entry. No questions of fact have been considered. Respondents may lawfully and properly consider the alleviation of racial imbalance as one of the factors and criteria for the rezoning of school districts (cf. Matter of Balaban v. Rubin, 20 A D 2d 438, affd. 14 N Y 2d 193, cert. den. 379 U. S. 881; Matter of Strippoli V. Biekal, 21 A D 2d 365, affd. 16 N Y 2d 652; Matter of Addabbo v. Donovan, 43 Mise 2d 621, affd. 22 A D 2d 383, affd. 16 N Y 2d 619, cert. den. 382 U. S. 905; Offerman v. Nitkowski, 378 F. 2d 22). In our opinion, however, a determination of whether the rezoning at bar was or was not arbitrary and unreasonable cannot be made until an answer has been interposed and all the factors and criteria considered by respondents as a basis for this rezoning have been put into the record. Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.

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In a proceeding pursuant to CPLR article 78 to annul [547]*547respondents’ determination designating Public School 170, Queens, as a feeder school for Intermediate School 8 and for related injunctive relief, petitioners appeal from a judgment of the Supreme Court, Queens County, dated August 29, 1967, which granted respondents’ motion, made before answer, to dismiss the petition for insufficiency on its face. Judgment reversed, on the law, without costs, and motion denied with leave to respondents to answer the petition within 10 days after service of a copy of the order entered hereon, with notice of entry. No questions of fact have been considered. Respondents may lawfully and properly consider the alleviation of racial imbalance as one of the factors and criteria for the rezoning of school districts (cf. Matter of Balaban v. Rubin, 20 A D 2d 438, affd. 14 N Y 2d 193, cert. den. 379 U. S. 881; Matter of Strippoli V. Biekal, 21 A D 2d 365, affd. 16 N Y 2d 652; Matter of Addabbo v. Donovan, 43 Mise 2d 621, affd. 22 A D 2d 383, affd. 16 N Y 2d 619, cert. den. 382 U. S. 905; Offerman v. Nitkowski, 378 F. 2d 22). In our opinion, however, a determination of whether the rezoning at bar was or was not arbitrary and unreasonable cannot be made until an answer has been interposed and all the factors and criteria considered by respondents as a basis for this rezoning have been put into the record. Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.

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Bluebook (online)

29 A.D.2d 546, 285 N.Y.S.2d 311, 1967 N.Y. App. Div. LEXIS 2801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borko-v-giordano-nyappdiv-1967.