Lerrick v. Egan

Appellate Division of the Supreme Court of New York

Lerrick v. Egan

54 A.D.2d 934, 388 N.Y.S.2d 136, 1976 N.Y. App. Div. LEXIS 14797

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 8, 1976

StatusPublished

Cited by1 cases

This text of 54 A.D.2d 934 (Lerrick v. Egan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lerrick v. Egan, 54 A.D.2d 934, 388 N.Y.S.2d 136, 1976 N.Y. App. Div. LEXIS 14797 (N.Y. Ct. App. 1976).

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Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Yorktown, which denied petitioner’s application for a special use permit, the appeal is from a judgment of the Supreme Court, Westchester County, dated June 23, 1975, which, after a nonjury trial, annulled the determination and dismissed the answer. Judgment reversed, on the law, without costs or disbursements, and proceeding dismissed on the merits. In our opinion it was error for the Special Term, in effect, to hold the subject zoning ordinance unconstitutional in the absence of the town legislative body, a necessary party in order for such a holding to be made (see Matter of Overhill Bldg. Co. v Delaney, 28 NY2d 449; Matter of Trifaro v Zoning Bd. of Appeals of Town of Red Hook, 45 AD2d 1015). In our view, the fact that the petitioner had moved his residence from the subject premises some time before the zoning ordinance amendment in question was adopted (under the amendment’s provision, applicable herein, his residence at such premises was a required condition for the issuance of the requested permit) provided a sufficient basis for the board’s denial of his application, and no further findings were [935]*935required to have been made. Hopkins, Acting P. J., Martuscello, Margett, Rabin and Hawkins, JJ., concur.

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In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Yorktown, which denied petitioner’s application for a special use permit, the appeal is from a judgment of the Supreme Court, Westchester County, dated June 23, 1975, which, after a nonjury trial, annulled the determination and dismissed the answer. Judgment reversed, on the law, without costs or disbursements, and proceeding dismissed on the merits. In our opinion it was error for the Special Term, in effect, to hold the subject zoning ordinance unconstitutional in the absence of the town legislative body, a necessary party in order for such a holding to be made (see Matter of Overhill Bldg. Co. v Delaney, 28 NY2d 449; Matter of Trifaro v Zoning Bd. of Appeals of Town of Red Hook, 45 AD2d 1015). In our view, the fact that the petitioner had moved his residence from the subject premises some time before the zoning ordinance amendment in question was adopted (under the amendment’s provision, applicable herein, his residence at such premises was a required condition for the issuance of the requested permit) provided a sufficient basis for the board’s denial of his application, and no further findings were [935]*935required to have been made. Hopkins, Acting P. J., Martuscello, Margett, Rabin and Hawkins, JJ., concur.

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Bluebook (online)

54 A.D.2d 934, 388 N.Y.S.2d 136, 1976 N.Y. App. Div. LEXIS 14797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lerrick-v-egan-nyappdiv-1976.

Opinion

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