De Marco v. Fitzgerald

10 A.D.2d 887, 201 N.Y.S.2d 214, 1960 N.Y. App. Div. LEXIS 10400

Opinion

In a proceeding pursuant to article 78 of the Civil Practice Act to review the revocation of a building permit by the Zoning Board of Appeals of the Incorporated Village of Manorhaven, the board appeals from an order of the Supreme Court, Nassau County, entered September 8, 1959, which annulled its determination and directed it to reinstate the building permit upon compliance with a specified condition. Order reversed on the law and the facts, without costs, determination of the board reinstated, and proceeding dismissed, without costs. Findings of fact insofar as they may be inconsistent herewith are reversed, and new findings are made as indicated herein. The determination of the board was not unreasonable or capricious. It was within its province to find that the permit had been illegally granted (Matter of Levy v. Board of Stds. & Appeals, 267 N. Y. 347, 351). No vested right accrued by reason of the issuance of the permit (Marcus v. Village of Mamaroneck, 283 N. Y. 325, 330; Matter of Kaltenbach v. Board of Stds. & Appeals, 274 N. Y. 34; Matter of Colonial Beacon Oil Co. v. Finn, 245 App. Div. 459, affd. 270 N. Y. 591). Furthermore, by their failure to serve a reply, petitioners are deemed to have admitted the new matter alleged in the answer (Civ. Prac. Act, § 1292). Nolan, P, J., Beldock, Ughetta, Christ and Brennan, JJ., concur. [20 Misc 2d 457.]