Clearview Gardens Fifth Corp. v. Murdock

12 A.D.2d 521, 210 N.Y.S.2d 497, 1960 N.Y. App. Div. LEXIS 7023

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 1960
• Status: Published

Opinion

In a proceeding to review and annul a determination of the Board of Standards and Appeals of the City of New York, which granted an application under subdivision (e) of section 7 of the Zoning Resolution of the City of New York for a variance so as to permit the erection and operation of a gasoline service station in a Residence Use District for a period of 15 years, subject to express safeguards and conditions imposed by the board, the petitioners appeal from an order of the Supreme Court, Queens County, dated November 30, 1959, which grants the motion of the respondent board to dismiss the petition and to affirm the board’s determination, and which denies the petitioners’ cross motion for the relief demanded in the petition. Petitioners contend that the board exceeded the powers granted to it by subdivision (e) of section 7 of the Zoning Resolution; and that its determination is void because of procedural defects, particularly in that there was a vacancy in the five-member board at the time some of the proceedings upon the variance application were held (citing: New York City Charter, § 661; General Construction Law, § 41). Order affirmed, with costs. The decision in Matter of Gray v. Maislen (17 Misc 2d 161) is not applicable to this case, since here the board’s determination was finally made upon the votes of all its five members. Nolan, P. J., Beldock, Ughetta, Christ and Brennan, J.J., concur.