Opinion
November 15, 1985
Appeal from the Supreme Court, Monroe County, Maloy, J.
Present — Dillon, P.J., Hancock, Jr., Doerr, Green and Schnepp, JJ.
Judgment unanimously affirmed, without costs. Memorandum: Respondent property owners did not object to petitioner's seeking to enjoin allegedly illegal uses of their property by commencing a special proceeding in Supreme Court, Housing Part. Respondents answered the petition on the merits and set forth an affirmative defense that the uses complained of were valid preexisting nonconforming uses. Because no objection was made at Special Term to the procedure followed, this issue has not been preserved for appellate review.
On the adjourned date of the matter at Special Term, it appeared that the Director of Zoning had denied respondents' application for a certificate of nonconformity pursuant to Code of City of Rochester § 115-96 (I) (Rochester Code). Because no appeal had been taken to the Zoning Board of Appeals (Rochester Code § 115-33), respondents remained in violation of the code (Rochester Code § 115-96 [I] [3] [c]). Special Term, instead of summarily granting the injunction and holding respondents in violation, granted what amounts to a further extension of time to permit respondents to appeal the Director of Zoning's denial of their request to the Zoning Board of Appeals. It was within Special Term's discretion to grant the relief, and respondents have demonstrated no prejudice.