Stein v. City of Newburgh

90 A.D.2d 542, 455 N.Y.S.2d 116, 1982 N.Y. App. Div. LEXIS 18599

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 1982
• Status: Published

Opinion

In an action for an injunction, defendants appeal from (1) an order of the Supreme Court, Orange County (Hawkins, J.), dated December 7,1981, which, after a nonjury trial, enjoined defendants from enforcing against plaintiffs the zoning ordinances requiring an auto junkyard permit, and (2) an order of the same court (Isseks, J.), dated December 11, 1981, which denied defendants’ motion to dismiss the complaint on the ground of the Statute of Limitations. Order dated December 7, 1981, reversed, on the law, and action dismissed. Appeal from order dated December 11,1981, dismissed as moot in light of the determination of the appeal from the order dated December 7, 1981. The appellants are awarded one bill of costs. The trial record clearly demonstrates that, under the circumstances, the enforcement of the zoning ordinances relating to maintenance of plaintiffs’ auto junkyard does not constitute manifest injustice (cf. Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Eden v Board of Trustees of State Univ. of N. Y., 49 AD2d 277, 283-284). Plaintiffs were aware that the issuance of a one-year license by the city clerk was a mistake since it immediately followed denial of their application by the city council. Inasmuch as the mistakenly issued license itself expired after one year, plaintiffs’ continued operation of the business up to the present time cannot be deemed to have been in reliance upon the improperly issued license. There is, therefore, an absence of reliance sufficient to invoke the doctrine of estoppel, even if that principle were currently available (Matter of Rosbar Co. v Board of Appeals of City of Long Beach, 53 NY2d 623). Lazer, J. P., Mangano, Gibbons and Brown, JJ., concur.