Masder Builders, Inc. v. Overton

Appellate Division of the Supreme Court of New York

Masder Builders, Inc. v. Overton

15 A.D.2d 551, 223 N.Y.S.2d 174, 1961 N.Y. App. Div. LEXIS 6960

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

DecidedDecember 20, 1961

StatusPublished

Cited by2 cases

This text of 15 A.D.2d 551 (Masder Builders, Inc. v. Overton) 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

Masder Builders, Inc. v. Overton, 15 A.D.2d 551, 223 N.Y.S.2d 174, 1961 N.Y. App. Div. LEXIS 6960 (N.Y. Ct. App. 1961).

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Opinion

It is alleged in the petition that such denial of approval was unreasonable since the water system installed meets all criteria established by the Suffolk County Department of Health with respect to individual water supply systems. Respondent’s answer contains objections in point of law, denials and an affirmative defense that the property involved is part of a “ subdivision ” within the meaning of the Suffolk County Sanitary Code and the Public Health Law, and is therefore subject to a regulation issued by respondent at the direction of the Suffolk County Board of Health. This regulation provides, inter alia, that individual water wells shall not be used-except where the actual cost to the subdivider of extending to the nearest existing water supply exceeds 5% of the market price of the subdivided lots and/or proposed houses to be built, or a minimum or $500 per plot, whichever is greater. Respondent alleges that the parcel involved does not come within this exception, and that petitioner’s application for approval of its private water supply system was therefore properly denied. Petitioner served a reply in which, so far as is here pertinent, it denied the new matter alleged [552]*552by respondent and admitted that it had constructed 15 buildings in the same area at the same time. The Special Term ruled on the objections and point of law and held the petition sufficient on its face. The Special Term dismissed the petition upon the merits, however, on the grounds that the regulation issued by respondent had the force and effect of law; that it applies to the property herein; and that the record establishes that petitioner’s plot can be supplied with public water within the cost fixed by respondent’s regulation. In our opinion, the pleadings raise issues of fact which should be resolved by a trial (¡Civ. Prac. Act, § 1295), before any determination is made as to the questions of law. Nolan, P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.

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It is alleged in the petition that such denial of approval was unreasonable since the water system installed meets all criteria established by the Suffolk County Department of Health with respect to individual water supply systems. Respondent’s answer contains objections in point of law, denials and an affirmative defense that the property involved is part of a “ subdivision ” within the meaning of the Suffolk County Sanitary Code and the Public Health Law, and is therefore subject to a regulation issued by respondent at the direction of the Suffolk County Board of Health. This regulation provides, inter alia, that individual water wells shall not be used-except where the actual cost to the subdivider of extending to the nearest existing water supply exceeds 5% of the market price of the subdivided lots and/or proposed houses to be built, or a minimum or $500 per plot, whichever is greater. Respondent alleges that the parcel involved does not come within this exception, and that petitioner’s application for approval of its private water supply system was therefore properly denied. Petitioner served a reply in which, so far as is here pertinent, it denied the new matter alleged [552]*552by respondent and admitted that it had constructed 15 buildings in the same area at the same time. The Special Term ruled on the objections and point of law and held the petition sufficient on its face. The Special Term dismissed the petition upon the merits, however, on the grounds that the regulation issued by respondent had the force and effect of law; that it applies to the property herein; and that the record establishes that petitioner’s plot can be supplied with public water within the cost fixed by respondent’s regulation. In our opinion, the pleadings raise issues of fact which should be resolved by a trial (¡Civ. Prac. Act, § 1295), before any determination is made as to the questions of law. Nolan, P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.

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Bluebook (online)

15 A.D.2d 551, 223 N.Y.S.2d 174, 1961 N.Y. App. Div. LEXIS 6960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/masder-builders-inc-v-overton-nyappdiv-1961.

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