Kromberg v. Frisina , 38 Misc. 2d 370 ( 1963 )

Mario Pittoni, J.

Application for an order, pursuant to article 78 of the Civil Practice Act, directing the respondent to issue a building permit for premises known as Plot 23 of Section 13, Block 1 on the Tax Map of the Incorporated Village of Lynbrook, also known as 68 Merrick Road, Lynbrook, New York, is denied.

The petition alleges that a building permit was denied on September 6,1962. The motion papers were served on January 7,1963. A proceeding under article 78 of the Civil Practice Act must — insofar as a zoning matter is concerned — be brought within 30 days after the filing of a decision in the office of the Village Clerk (Village Law, § 179-b). The papers submitted do not show when, if ever, the denial of the permit was filed.

Assuming that the denial of the building permit was not filed and therefore that the proceeding is timely, this proceeding would still have to be dismissed because the petitioners have not appealed to the Board of Appeals as permitted by article XIV of Zoning Ordinance No. 55 of the Incorporated Village of Lynbrook and by section 179-b of the Village Law. Until an appeal has been taken and denied the determination may not be considered as final (see Matter of Towers Management Corp. v. Thatcher, 271 N. Y. 94; Radano v. Town of Huntington, 281 App. Div. 682, affd. 305 N. Y. 911; Matter of Spinelli v. Burke, 29 Misc 2d 1051), a condition precedent to the maintenance of an article 78 proceeding (Civ. Prac. Act, § 1285, subd. 3).