Opinion
No. 129 SSM 6.
Decided May 1, 2008.
APPEALS, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered August 16, 2007. The Appellate Division affirmed an order and judgment of the Supreme Court, New York County (Alice Schlesinger, J), entered in a proceeding pursuant to CPLR article 78, which, after a hearing, had granted a petition to annul the resolution of respondent Board of Standards and Appeals denying petitioner an area variance and directed the Board to issue the variance. The following question was certified by the Appellate Division: "Was the order of the Supreme Court, as affirmed by this Court, properly made?"
Matter of Pantelidis v New York City Bd. of Stds. Appeals, 43 AD3d 314, affirmed.
Michael A. Cardozo, Corporation Counsel, New York City ( Tahirih M. Sadrieh of counsel), for appellants.
Warshaw Burstein Cohen Schlesinger Kuh, LLP, New York City ( Bruce H. Weiner of counsel), for intervenors-appellants.
Hagan, Coury Associates, Brooklyn ( Paul Golden of counsel), for respondent.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs, and the certified question not answered upon the ground that it is unnecessary.
An issue of fact existed whether petitioner relied in good faith upon the permit issued by the Department of Buildings. The courts below properly concluded that a hearing was necessary on that issue and that, in this setting, that hearing could be conducted by Supreme Court and not the agency. Moreover, because the record was sufficiently developed, Supreme Court, after conducting the good faith hearing, properly concluded as a matter of law that petitioner had satisfied the criteria set forth in the Zoning Resolution and that the Board of Standards and Appeals should issue the requested variance.
Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.