Samsonian v. Board of Appeals of Inc.

261 A.D.2d 624, 690 N.Y.S.2d 671, 1999 N.Y. App. Div. LEXIS 5720

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 24, 1999
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Appeals of the Incorporated Village of Upper Brookville, entered March 12, 1998, which, inter alia, after a hearing, denied the petitioners’ application for an area variance, the Board of Appeals of the Incorporated Village of Upper Brookville appeals (1) from a decision of the Supreme Court, Nassau County (Winick, J.), dated March 12, 1998, and (2), as limited by its brief, from so much of a judgment of the same court entered March 26, 1998, upon the decision, as granted the petition, annulled its determination, and directed it to issue an area variance for a barbecue tower to the petitioners.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the judgment is affirmed insofar as appealed from; and it is further,

Ordered that the petitioners are awarded one bill of costs.

Contrary to the contention of the appellant, Board of Appeals of the Incorporated Village of Upper Brookville, its denial of the petitioners’ application for an area variance was without a rational basis and was arbitrary and capricious. Therefore, the Supreme Court properly annulled the Board’s determination and directed that the variance be granted (see, Matter of Sasso v Osgood, 86 NY2d 374, 384-386; Matter of Baker v Brownlie, 248 AD2d 527; Matter of Hampshire Mgt. Co. v Nadel, 241 AD2d 496; Matter of Frank v Scheyer, 227 AD2d 558). Mangano, P. J., Friedmann, McGinity and Feuerstein, JJ., concur.