Kenny Development Corp. v. Kramer

22 Misc. 2d 122, 202 N.Y.S.2d 421, 1960 N.Y. Misc. LEXIS 3109

• Court: New York Supreme Court
• Decided: April 25, 1960
• Status: Published

Opinion

Mario Pittoni, J.

Application pursuant to article 78 of the Givil Practice Act for an order reviewing and annulling the determination of the respondents wherein Mary C. Cafferty was denied permission to build a dwelling on a plot located on the west side of Deepdale Parkway, 40.15 feet south of Netherwood Drive in the Town of North Hempstead.

The subject property is in a Residence B zone. It has an area of 3,880 square feet. When the zoning ordinance was enacted in 1929 an area of 4,000 square feet was required. Later, by amendment, the zoning ordinance required 6,000 square feet. Prior to 1937, when the subject property was acquired by Mary C. Cafferty, the Willis Estates, Inc., owned this plot and adjacent property. It had a total area considerably in excess of the required area for building.

The petitioner does not contend that the predecessor in title of Mary C. Cafferty had the right to 'build on a substandard plot, and it does not claim that from the time the ordinance was adopted this substandard plot was held in single and separate ownership. The sole basis of this proceeding is the claim that as an adjacent property owner received permission to build on a substandard plot- the respondents were arbitrary and capricious in denying permission to Mary C. Cafferty.

The petitioner is not Mary C. Cafferty. Therefore, the petitioner has no standing to maintain an article 78 proceeding. However, assuming that Mary C. Cafferty were the petitioner herein, she would not be entitled to the relief sought. The mere fact that one owner is favored does not automatically entitle another owner to equally favored treatment. “ Exercise of discretion in favor of one confers no right upon another to demand the same decision ” (Matter of Larkin Co. v. Schwab, 242 N. Y. 330, 336).

To obtain a variance an owner must show that unique circumstances exist with respect to his particular plot, and not that the ordinance is generally unreasonable as to substandard plots (Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of Forrest v. Evershed, 7 N Y 2d 256). Many times in recent months the appellate courts have held that it is not an unreasonable exercise of discretion to deny permission to build on substandard plots where the substandard condition resulted from the act of an owner of a conforming plot in dividing that plot so that one or more of the parts had insufficient area (Matter of Fina Homes v. Young, 7 N Y 2d 845; Matter of Chasanoff v. Silberstein, 6 N Y 2d 807; Matter of Ferryman v. Weisser, 3 A D 2d 674). There is nothing in the record submitted to the court which warrants a departure from those decisions. Application denied. Submit order.