Conwall Realty Corp. v. Murdock

285 A.D. 951, 138 N.Y.S.2d 195, 1955 N.Y. App. Div. LEXIS 6277

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 1955
• Status: Published

Opinion

Appeal by the board of standards and appeals of the City of Hew York from an order of the Special Term which denied the board’s motion to vacate the order of certiorari and to dismiss the petition, reversed, set aside and annulled the board’s determination denying the respondent’s application, pursuant to subdivisions (e), (f) and (i) of section 7 of the Zoning Resolution of the City of Hew York, for a permit for the use of respondent’s premises for a gasoline service and repair station in a retail business district, and directed the issuance of such permit. Order reversed on the law and the facts, with $50 costs and disbursements, proceeding dismissed, and determination of the board of standards and appeals reinstated and confirmed. There was a reasonable basis for the action of the board in harmony with the general purposes of the zoning resolution. (Cf. Matter of Seed V. Board of Stds. & Appeals, 255 H. Y. 126, 135.) Its determination has support in the evidence, and is not arbitrary. The court may not substitute its judgment for that of the board. (Matter of Ernst v. Board of Appeals on Zoning of City of New Boehelle, 274 App. Div. 809; Matter of Berger v. Board of Stds. & Appeals of City of N. Y.> 277 App. Div. 1142.) The mere fact that similar permits were granted to other owners in the same locality affords no valid reason for insisting on the issuance of a permit for a special exception use in this case. (Matter of Chizner v. Walsh, 236 App. Div. 731, affd. 261 H. Y. 707.) Nolan, P. J., Wenzel, MacCrate, Murphy and Ughetta, JJ., concur.