Commissioner of Community Development v. Cohen

Appellate Division of the Supreme Court of New York

Commissioner of Community Development v. Cohen

115 A.D.2d 277, 496 N.Y.S.2d 120, 1985 N.Y. App. Div. LEXIS 54540

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

DecidedNovember 15, 1985

StatusPublished

This text of 115 A.D.2d 277 (Commissioner of Community Development v. Cohen) 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

Commissioner of Community Development v. Cohen, 115 A.D.2d 277, 496 N.Y.S.2d 120, 1985 N.Y. App. Div. LEXIS 54540 (N.Y. Ct. App. 1985).

Pincite

Opinion

Judgment unanimously affirmed, without costs. Memorandum: Respondent property owners did not object to petitioner’s seeking to enjoin allegedly illegal uses of their property by commencing a special proceeding in Supreme Court, Housing Part. Respondents answered the petition on the merits and set forth an affirmative defense that the uses complained of were valid preexisting nonconforming uses. Because no objection was made at Special Term to the procedure followed, this issue has not been preserved for appellate review.

On the adjourned date of the matter at Special Term, it appeared that the Director of Zoning had denied respondents’ application for a certificate of nonconformity pursuant to Code of City of Rochester § 115-96 (I) (Rochester Code). Because no appeal had been taken to the Zoning Board of Appeals (Rochester Code § 115-33), respondents remained in violation of the code (Rochester Code § 115-96 [I] [3] [c]). Special Term, instead of summarily granting the injunction and holding respondents in violation, granted what amounts to a further extension of time to permit respondents to appeal the Director of Zoning’s denial of their request to the Zoning Board of Appeals. It was within Special Term’s discretion to grant the relief, and respondents have demonstrated no prejudice. (Appeal from judgment of Supreme Court, Monroe County, Maloy, J.— CPLR art 4.) Present—Dillon, P. J., Hancock, Jr., Doerr, Green and Schnepp, JJ.

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Judgment unanimously affirmed, without costs. Memorandum: Respondent property owners did not object to petitioner’s seeking to enjoin allegedly illegal uses of their property by commencing a special proceeding in Supreme Court, Housing Part. Respondents answered the petition on the merits and set forth an affirmative defense that the uses complained of were valid preexisting nonconforming uses. Because no objection was made at Special Term to the procedure followed, this issue has not been preserved for appellate review.

On the adjourned date of the matter at Special Term, it appeared that the Director of Zoning had denied respondents’ application for a certificate of nonconformity pursuant to Code of City of Rochester § 115-96 (I) (Rochester Code). Because no appeal had been taken to the Zoning Board of Appeals (Rochester Code § 115-33), respondents remained in violation of the code (Rochester Code § 115-96 [I] [3] [c]). Special Term, instead of summarily granting the injunction and holding respondents in violation, granted what amounts to a further extension of time to permit respondents to appeal the Director of Zoning’s denial of their request to the Zoning Board of Appeals. It was within Special Term’s discretion to grant the relief, and respondents have demonstrated no prejudice. (Appeal from judgment of Supreme Court, Monroe County, Maloy, J.— CPLR art 4.) Present—Dillon, P. J., Hancock, Jr., Doerr, Green and Schnepp, JJ.

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Bluebook (online)

115 A.D.2d 277, 496 N.Y.S.2d 120, 1985 N.Y. App. Div. LEXIS 54540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commissioner-of-community-development-v-cohen-nyappdiv-1985.