Flink v. Town of Mamaroneck

129 A.D.2d 579, 514 N.Y.S.2d 78, 1987 N.Y. App. Div. LEXIS 45246

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1987
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Board of Appeals of the Town of Mamaroneck dated May 30, 1985, denying the petitioner’s application for a variance, the appeal is from a judgment of the Supreme Court, Westchester County, entered November 18, 1985, which granted the petition.

Ordered that the judgment is affirmed, without costs or disbursements, for reasons stated by Justice Colabella at Special Term.

We add that contrary to the appellants’ claim, Special Term did not rely on any material not contained in the record (CPLR 7804 [e]). Further, the appellants, having issued the notices of violation and disapproval under the name of the "Building Department”, are estopped from asserting lack of jurisdiction here on the ground that the Building Department was not formally constituted (31 CJS, Estoppel, §§ 123, 124; cf., Bender v New York City Health & Hosps. Corp., 38 NY2d 662; State ex rel. Anaya v McBride, 88 NM 244, 539 P2d 1006, 1011). Bracken, J. P., Lawrence, Kunzeman and Spatt, JJ., concur.