Giorgianni v. City of New York

255 A.D.2d 119, 678 N.Y.S.2d 896, 1998 N.Y. App. Div. LEXIS 11627

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 1998
• Status: Published

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Franklin Weissberg, J.), entered on or about July 30, 1997, unanimously vacated, on the law, the proceeding treated as one transferred to this Court pursuant to CPLR 7804 (g), and, upon such transfer and review, the determination of respondent Board of Standards and Appeals of the City of New York, which denied petitioners’ application for a zoning variance, unanimously confirmed, the petition denied, and the proceeding dismissed, without costs.

The IAS Court having improperly entertained the issue of substantial evidence (CPLR 7804 [g]), this Court will treat the substantial evidence issue de novo and determine the proceeding as if it had been properly transferred (Matter of 902 Assocs. v New York City Loft Bd., 229 AD2d 351). Respondent’s determination that petitioners failed to demonstrate that they satisfied all of the requirements of section 72-21 of the New York City Zoning Resolution (see, Matter of Russo v Board of Estimate, 84 AD2d 842) is supported by substantial evidence (see, Matter of Cowan v Kern, 41 NY2d 591, 598-599), including the record of the public hearings that were held on petitioners’ application for a variance. With respect to one of those requirements not fully discussed in respondent’s determination, we note that information contained in the feasibility study submitted by petitioners in support of their application for a variance fell far short of demonstrating practical difficulties or unnecessary hardship (see, Matter of Village Bd. v Jarrold, 53 NY2d 254). Concur — Sullivan, J. P., Rosenberger, Wallach, Mazzarelli and Andrias, JJ.