Doniger v. Yerkes

Appellate Division of the Supreme Court of New York

Doniger v. Yerkes

115 A.D.2d 961, 497 N.Y.S.2d 789, 1985 N.Y. App. Div. LEXIS 55326

Appellate Division of the Supreme Court of the State of New York·Decided December 20, 1985·Published

Opinion

Judgment unanimously reversed, on the law, without costs, and petition dismissed. Memorandum: The court erred in ordering the Zoning Board of Appeals to grant petitioner’s request for an area variance. While the Board improperly failed to recognize that financial hardship should be considered in determining whether practical difficulty exists (see, Matter of Cowan v Kern, 41 NY2d 591, 596-597; Matter of Fulling v Palumbo, 21 NY2d 30), on the sparse record here, the Board was correct that the petitioner [962] failed to meet her burden of proving practical difficulty. That burden not having been met, the Board was not required to consider whether denial of the variance was required by the public health and welfare (see, Matter of Orchard Michael, Inc. v Falcon, 110 AD2d 1048, affd 65 NY2d 1007). (Appeal from judgment of Supreme Court, Ontario County, Bergin, J. —art 78.) Present—Hancock, Jr., J. P., Doerr, Denman, O’Donnell and Pine, JJ.

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Judgment unanimously reversed, on the law, without costs, and petition dismissed. Memorandum: The court erred in ordering the Zoning Board of Appeals to grant petitioner’s request for an area variance. While the Board improperly failed to recognize that financial hardship should be considered in determining whether practical difficulty exists (see, Matter of Cowan v Kern, 41 NY2d 591, 596-597; Matter of Fulling v Palumbo, 21 NY2d 30), on the sparse record here, the Board was correct that the petitioner [962] failed to meet her burden of proving practical difficulty. That burden not having been met, the Board was not required to consider whether denial of the variance was required by the public health and welfare (see, Matter of Orchard Michael, Inc. v Falcon, 110 AD2d 1048, affd 65 NY2d 1007). (Appeal from judgment of Supreme Court, Ontario County, Bergin, J. —art 78.) Present—Hancock, Jr., J. P., Doerr, Denman, O’Donnell and Pine, JJ.

Doniger v. Yerkes, 115 A.D.2d 961, 497 N.Y.S.2d 789, 1985 N.Y. App. Div. LEXIS 55326 (N.Y. Ct. App. 1985).

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115 A.D.2d 961 (Doniger v. Yerkes) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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