Kalpin v. Accettella

160 A.D.2d 909

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 23, 1990
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Zoning Appeals of the Incorporated Village of Babylon dated June 17, 1988, which, after a hearing, denied the petitioners’ application for a variance, Ramon F. Accettella, Arlene Strickland, John P. Wilson, Philip F. Corso and Donald Lewis, constituting the Board of Zoning Appeals of the Incorporated Village of Babylon, appeal, by permission, from an order of the Supreme Court, Suffolk County (Jones, J.), entered October 19, 1988, which denied their motion to dismiss the petition on the ground of res judicata.

Ordered that the order is affirmed, without costs or disbursements.

The petitioners originally sought a zoning variance in order to subdivide their plot into two substandard lots. After a hearing, the respondent Board of Zoning Appeals of the Incorporated Village of Babylon (hereinafter the Board) denied the variance on January 28, 1987. The petitioners then commenced a proceeding pursuant to CPLR article 78 to challenge this determination. That proceeding was dismissed as barred by the applicable three-month Statute of Limitations (see, Village Law § 7-712 [3]).

Thereafter, the petitioner reapplied to the Board for the same variance. New hearings were held, and on June 17, 1988, the Board again denied the petitioners’ application.

The petitioners then commenced the instant proceeding, this time in a timely fashion.

On this appeal, the Board claims that the dismissal of the first proceeding is res judicata as to the second proceeding. Because we find there were two separate independent, and distinct determinations made by the Board, dismissal of the first proceeding does not preclude review of the Board’s second determination (see, Village Law § 7-712 [3]). Lawrence, J. P., Kunzeman, Rosenblatt and Miller, JJ., concur.