Opinion
April 5, 1971
Motion by appellants, the members of the Board of Appeals of the Village of Scarsdale, for reargument of appeal from a judgment of the Supreme Court, Westchester County, dated December 29, 1969, upon which appeal this court affirmed the judgment ( Matter of Work v. Delany, 35 A.D.2d 1013). The judgment, entered in a proceeding pursuant to article 78 of the CPLR, (1) annulled a determination by appellants denying petitioner's application for an area variance and (2) directed that the variance be granted. Motion for reargument granted and, on reargument, judgment reversed, on the law, without costs; proceeding dismissed on the merits; and determination of appellants confirmed. A determination denying an application for an area variance will be sustained where, as here, it appears that the substandard condition resulted from the owner's own act. There is nothing in the record to negate appellants' finding that the character of the neighborhood justified the denial of the variance ( Matter of 113 Hillside Ave. Corp. v. Zaino, 27 N.Y.2d 258; Matter of Hammond Homes v. Bergan, 35 A.D.2d 973; Matter of Krehely v. Board of Appeals, Inc. Vil. of Garden City, 35 A.D.2d 974). Munder, Acting P.J., Latham, Shapiro and Brennan, JJ., concur; Martuscello, J., concurs in granting the motion for reargument, but otherwise dissents and, on reargument, votes to affirm the judgment.