Mazzoli v. Di Fabio , 687 N.Y.S.2d 503 ( 1999 )

Judgment unanimously affirmed without costs. Memorandum: In affirming the judgment, we note that petitioner did not, by filing an application for a use variance, submit to the jurisdiction of the Zoning Board of Appeals (see, Matter of Gaylord Disposal Serv. v Zoning Bd. of Appeals, 175 AD2d 543, 545, lv denied 78 NY2d 863). The record establishes that petitioner was coerced by the threat of criminal penalties into filing that application. Petitioner maintained at all times that no variance was required because of a prior determination by the former Code Enforcement Officer. (Appeal from Judgment of Supreme Court, Onondaga County, Major, J. — CPLR art 78.) Present— Denman, P. J., Pine, Pigott, Jr., Callahan and Balio, JJ.