Kohnberg v. Murdock

4 A.D.2d 750 | N.Y. App. Div. | 1957

Appeal from an order granting a motion to vacate an order of certiorari dated September 17, 1956 and to dismiss the petition on which said order was granted. On July 31,' 1956 the Board of Standards and Appeals of the City of New York granted the application of the owners of certain real property for a variance. On August 13, 1956 the resolution of the board was published in the board’s bulletin. On September 10, 1956 appellants, various property owners, feeling aggrieved by the decision of the board, served a notice of motion under article 78 of the Civil Practice Act to review the determination of the board, together with a petition sufficient in form under both article 78 of the Civil Practice Act and section 668e-1.0 of the Administrative Code of the City of New York for certiorari. On September 17, 1956, appellants, on the same petition, obtained an order of certiorari. On that day (Sept. 17, 1956) a stipulation was signed by and between the attorneys for the board and appellants withdrawing the notice of motion and petition served September 10, 1956 and substituting nunc pro tunc the certiorari order for the notice of motion. On November 28, 1956 the owners of the property for which the variance had been granted, were permitted to intervene. By notice of motion, returnable December 20, 1956, the board and the interveners moved to vacate the order of certiorari of September 17, 1956 and to dismiss the petition on the ground that the petition was not presented within 30 days after August 13, 1956, as required by section 668e-1.0 of the Administrative Code. The motion was granted by order dated January 8, 1957, the order appealed from. Order reversed, with $10 costs and disbursements, and motion denied, with leave to respondents, if they be so advised, to serve and file a return within 10 days after the entry of an order hereon. The form or label of the petition and notice to review, whether under article 78 of the Civil Practice Act or under the Administrative Code for certiorari, is immaterial. (Matter of Muller v. Zoning Bd. of Appeals, 270 App. Div. 824.) It is important only that the time limitation and other procedure prescribed under the Administrative Code be followed. (Matter of Fammler v. Board of Zoning Appeals, 254 App. Div. 777; Matter of Nathan v. Murdock, 62 N. Y. S. 2d. 415.) In this proceeding, the petition was sufficient under both article 78 and under the Administrative Code. The papers served on September 10, 1956 were timely (Matter of Barns v. Osborne, 286 N. Y. 403); they sufficiently advised the board of the relief sought by appellants; and any irreglilarity or defect in the form should be disregarded (Matter of Lake, Mahopac Heights v. Zoning Bd. of Appeals, 278 App. Div. 779). Wenzel, Acting P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ., concur. [4 Misc 2d 877.]