Opinion
2018–07057 Index No. 3794/17
06-05-2019
In the Matter of Desmond D'SOUZA, Appellant, v. BOARD OF APPEALS OF the TOWN OF HEMPSTEAD, Respondent.
Sahn Ward Coschignano, PLLC, Uniondale, N.Y. (Andrew M. Roth and Christian Browne of counsel), for appellant. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Todd C. Steckler of counsel), for respondent.
Sahn Ward Coschignano, PLLC, Uniondale, N.Y. (Andrew M. Roth and Christian Browne of counsel), for appellant.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Todd C. Steckler of counsel), for respondent.
REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
ORDERED that the judgment is reversed, on the law, with costs, the petition is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith.
The petitioner commenced this CPLR article 78 proceeding contending that a determination of the Board of Appeals of the Town of Hempstead denying his application, inter alia, for certain variances was "not supported by the evidence[,] ... illegal, irrational, arbitrary and/or an abuse of discretion." The Supreme Court denied the petition and dismissed the proceeding on the grounds that the petitioner had not provided "a copy of a transcript from the proceeding, ... any of the submissions that he may have made in support of the requests, including the applications for any variances themselves" and had "also not provided an affidavit from a person with knowledge in support of [his] petition."
CPLR 7804(d) permits, but does not require, the petitioner to submit affidavits or other written proof in support of the verified petition. Further, CPLR 7804(e) provides that the respondent, not the petitioner, "shall file with the answer a certified transcript of the record of the proceedings under consideration, unless such a transcript has already been filed with the clerk of the court." Here, the Supreme Court should not have denied the petition and dismissed the proceeding on the grounds asserted by it (see Matter of Dwyer v. County of Suffolk, Sheriff's Dept., 16 A.D.3d 498, 792 N.Y.S.2d 107 ). Accordingly, we reinstate the petition and remit the matter to the Supreme Court, Nassau County, for further proceedings.
RIVERA, J.P., COHEN, MALTESE and BRATHWAITE NELSON, JJ., concur.