Corcella v. Seifert

181 A.D.2d 677, 580 N.Y.S.2d 784, 1992 N.Y. App. Div. LEXIS 2987

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 2, 1992
• Status: Published

Opinion

— In a proceeding pursuant to CPLR article 78 to compel the Building Inspector of the Village of Belle Terre to issue a building permit, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Dunn, J.), dated April 25, 1990, which dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

A constitutional claim that hinges upon factual issues reviewable at the administrative level must first be addressed to the administrative agency so that a necessary factual record can be established (see, Matter of Fichera v City of New York, 145 AD2d 482, 484). The mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative remedies that can provide the requested relief (see, Matter of Fichera v City of New York, supra).

There is no record in this case as to whether there was a merger of the lot in question with an adjoining lot (see, Matter of Barkus v Kern, 160 AD2d 694). Under the circumstances of this case, the established administrative remedies could have provided the requested relief. Thus, the failure to pursue these remedies cannot be excused. Accordingly, the proceeding was properly dismissed owing to the petitioner’s failure to exhaust his administrative remedies. Bracken, J. R, Lawrence, Eiber and Miller, JJ., concur.