Raab v. Silverstein

106 A.D.3d 746, 964 N.Y.S.2d 236

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 1, 2013
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Incorporated Village of Lawrence dated June 16, 2011, which granted the application of Yael Silverstein for area variances permitting the construction of a second-story addition to her house, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Adams, J.), dated January 12, 2012, which denied the petition and dismissed the proceeding. Motion by Yael Silverstein to dismiss the appeal on the ground that the appeal has been rendered academic. By decision and order on motion dated September 4, 2012, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is,

Ordered that the motion is granted; and it is further,

Ordered that the appeal is dismissed as academic, with one bill of costs to the respondents appearing separately and filing separate briefs.

The petitioner commenced this CPLR article 78 proceeding to review a determination of the Zoning Board of Appeals of the Incorporated Village of Lawrence which granted the application of Yael Silverstein for area variances permitting the construction of a second-story addition to her house.

The petitioner failed to move in the Supreme Court to preliminarily enjoin the subject construction. In addition, the petitioner failed to move in this Court for a preliminary injunc-

tion to preserve the status quo pending the determination of this appeal. In the interim, after the Supreme Court’s determination, a building permit was issued to Silverstein for the construction of the second-story addition, and such construction was substantially completed. Thus, the petitioner failed to preserve his rights pending appellate review, and the matter is now academic (see Matter of Sherman v Planning Bd. of Vil. of Scarsdale, 82 AD3d 899, 899-900 [2011]; Matter of Schaffer v Zoning Bd. of Appeals of Town/Vil. of Harrison, 22 AD3d 501 [2005]; Matter of Downes v Town of Southampton Zoning Bd. of Appeals, 15 AD3d 398, 399 [2005]).

Accordingly, we grant Silverstein’s motion to dismiss the appeal on the ground that the appeal has been rendered academic, and do not address the merits of the petitioner’s claims. Skelos, J.E, Angiolillo, Chambers and Hinds-Radix, JJ., concur.