Catalfamo v. Zirk

22 A.D.2d 802, 254 N.Y.S.2d 186, 1964 N.Y. App. Div. LEXIS 2825

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1964
• Status: Published

Opinion

In a proceeding pursuant to article 78 of the CPLR: (a) to direct the building inspector of the Town of Babylon to approve the petitioner’s application for a building permit to erect a one-family dwelling, and (b) to direct the inspector to issue such permit, the petitioner, by permission of the Supreme Court, Suffolk County, appeals from so much of an intermediate order of said court, dated April 10, 1964, as declared valid the building inspector’s conditional refusal to approve the application and as sustained his denial of the permit unless petitioner shall construct certain curbs and sidewalks and make other specified street improvements, as required by the local planning board. Order, insofar as appealed from, reversed on the law, with $10 costs and disbursements; petition granted; and the building inspector directed forthwith to approve the petitioner’s application and to issue the permit, such approval and such permit to be granted unconditionally. In our opinion, under the circumstances here, it was an illegal and unconstitutional usurpation of power on the part of the local building inspector to deny conditionally petitioner’s application for the building permit and, as a condition precedent to the issuance of the permit, to compel the petitioner to construct certain curbs and sidewalks and to make other specified street improvements (Reggs Homes v. Dickerson, 16 Misc 2d 732, affd. 8 A D 2d 640). Ughetta, Acting P. J., Christ, Brennan, Hill and Hopkins, JJ., concur.