Opinion
April 28, 1992
Appeal from the Supreme Court, New York County (David H. Edwards, Jr., J.).
We agree with the IAS court that respondents' determination that the sign in question promoting Newport cigarettes is an advertising sign that cannot be considered accessory to a gasoline service station under the Zoning Resolution is rationally based, and that the consequent revocation of the building permit to erect the sign was not arbitrary or capricious. Nor is there merit to petitioner's argument that the building permit could not be revoked without a hearing, the only question raised, as this Court held in the prior appeal in this matter, being one of law (Matter of Sievers v City of N.Y. Dept. of Bldgs., 146 A.D.2d 473). Were there issues of fact to be resolved requiring a hearing, the petition would have been dismissed for failure to exhaust administrative remedies by taking a timely appeal to the Board of Standards and Appeals (see, Matter of Perrotta v City of New York, 107 A.D.2d 320, 324, affd for reasons stated 66 N.Y.2d 859).
Concur — Milonas, J.P., Rosenberger, Ellerin and Asch, JJ.