Falk v. Village of Scarsdale Zoning Board of Appeals

254 A.D.2d 358, 678 N.Y.S.2d 299, 1998 N.Y. App. Div. LEXIS 10798

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 13, 1998
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Village of Scarsdale, dated July 23, 1997, which, after a hearing, denied the petitioner’s request for permission to install an auxiliary standby electric generator, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Lange, J.), entered January 9, 1998, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The petitioner failed to show that the determination by the Zoning Board of Appeals of the Village of Scarsdale that his proposed stationary standby generator was not a customary incidental use in an A-l residential district, and denying him permission to install it, was arbitrary, capricious, or irrational (see, Matter of JIJ Realty Corp. v Costello, 239 AD2d 580; Matter of Burke v Denison, 218 AD2d 894; Matter of Moody Hill Farms v Zoning Bd. of Appeals, 199 AD2d 954).

The petitioner’s claims under the Americans with Disabilities Act and the Fair Housing Act, which were raised for the first time in his reply papers, are not properly before this Court (see, Turkish Airlines v American Airlines, 249 AD2d 463; Galatti v Alliance Funding Co., 228 AD2d 550). In any event, the unsworn and vague statements by the petitioner’s mother’s physician are insufficient to make even a prima facie showing of the existence of a meritorious claim under either statute. Mangano, P. J., Sullivan, Florio and McGinity, JJ., concur.