4 A.D.2d 702 | N.Y. App. Div. | 1957
Appeal by the building inspector of the Town of Greenburgh, from an order, which, inter alia, (a) directs him to issue to Glenel Realty Corp., respondent on this appeal, a permit to complete the erection of one- and two-story buildings, to be used as a retail shopping center on its 14-acre tract of land, and (b) denies the application of neighboring property owners to intervene as parties in the proceeding, and (c) permits said property owners to appear in the proceeding as amici curies. The said property owners appeal from the order except insofar as it grants permission to appear as amici curies. Appeal by the property owners' insofar as it directs the issuance of the permit, dismissed, without costs. Order unanimously affirmed, with $50 costs and disbursements to respondent, payable by the appellant building inspector. Special Term properly exercised its discretion in refusing to join the neighboring property owners as parties to the proceeding. In any event, for all practical purposes they do not appear to have been prejudiced. Their appearance as amici curies has enabled them to give to the court a full presentation, without limitation, of all their contentions as though they were parties to the proceeding. Not being parties, however, they are not entitled to appeal formally from the order insofar as it directs the building inspector to issue the permit. Hence, their appeal from this part of the order must be dismissed. In an article 78 proceeding, a final order may be granted summarily on the return day if the record discloses that no triable issue exists as to any material fact upon which the right to relief depends (Civ. Prac. Act, § 1295 ; Matter of Ackerman v. Kern, 256 App. Div. 626, 630, affd. 281 N. Y. 87; Matter of Burr v. Paragon Tracking Corp., 270 N. Y. 464, 471). The learned Justice at Special Term, after examining the voluminous record and exhibits, found that there was no triable issue as to any such fact. We agree. On the basis of the material facts admitted or undisputed, or uncontradieted, the respondent, in our opinion, had, by November 6, 1956, the date the town zoning ordinance was amended, acquired a vested right to complete the superstructures for any legal use consistent with the ordinance prior to such amendment. The record establishes that prior to such date the respondent, in reliance on the four permits issued for the excavation and foundation work, (1) had completed the excavation work, had poured all the concrete for the foundations and had almost completed them, and (2) had assumed contractual obligations aggregating $787,726, and had actually made payments of $212,281 on account of such obligations. It is immaterial under the circumstances here present that some of these obligations and some of these payments may have antedated the permits. The indisputable fact remains that a substantial part of the excavation and foundation work was done after the issu