Estate Kadin v. Bennett

163 A.D.2d 310, 559 N.Y.S.2d 650, 1990 N.Y. App. Div. LEXIS 8221

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1990
• Status: Published

Opinion

In a hybrid proceeding pursuant to CPLR article 78 and in an action pursuant to 42 USC § 1983, the petitioner appeals from so much of a judgment of the Supreme Court, Richmond County (Sangiorgio, J.), dated November 9, 1987, as, in effect, dismissed its second cause of action pursuant to 42 USC § 1983.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

In the petition’s second cause of action, it was alleged, pursuant to 42 USC § 1983, that the petitioner was deprived of procedural due process by the refusal of the respondent Board of Standards and Appeals of the City of New York to hear its appeal seeking review of a determination by the Commissioner of the New York City Department of Buildings which revoked a building permit previously granted to it and issued a stop-work order. However, CPLR article 78, which allows for judicial review and correction of the actions of the Board of Standards and Appeals of the City of New York, provides whatever process the petitioner was due as a matter of Federal law. Since the petitioner has not alleged any basis for finding the State procedural remedy inadequate, the dismissal, in effect, of its 42 USC § 1983 claim was proper (see, Narumanchi v Board of Trustees, 850 F2d 70 [2d Cir]; Tarry Corp. v Friedlander, 650 F Supp 1544, 1551-1552 [SD NY], affd 826 F2d 210 [2d Cir]; Marino v Ameruso, 837 F2d 45 [2d Cir]; cf., Scott v Greenville County, 716 F2d 1409 [4th Cir]). Lawrence, J. P., Kunzeman, Rubin and Rosenblatt, JJ., concur.