200 Misc. 57 | N.Y. Sup. Ct. | 1951
Motion by petitioner to compel respondent to issue to petitioner a certificate of occupancy. Petitioner has erected a $75,000 ranch type residence in an area restricted to one family residences in respondent village and has applied for a certificate of occupancy which respondent has denied because respondent holds that the residence as constructed is a two-family dwelling. It seems that respondent had issued a building permit to petitioner on November 28, 1949, to erect this particular house. Petitioner made changes as the building was being constructed, one of which (the main objection of respondent) was to change the utility room into a kitchen, thus providing two kitchens in the building. A certificate of occupancy was refused by respondent’s building inspector (September 20, 1950) because of the presence of those two kitchens which the building inspector said signified that a two-family house was
It would appear that the only proof before respondent when considering this application was the plans and the oral statements of the building inspector (which must be inferred, because they are not recorded) who had visited the dwelling. The return states that on the amended plans the utility room was constructed to serve as a kitchen.- That is conceded by petitioner who goes further and states that it was changed to a kitchen. The return further states that “ maids’ rooms ” were constructed “ as and for bedrooms for either sister or mother of petitioner ”. No proof of any kind was offered before respondent to sustain that allegation. The return also alleges that ‘ ‘ other characterized rooms appearing on the plans and specifications, accommodations in the nature of a living-room, were also provided either contiguous to or adjacent to the sleeping quarters of the sister or mother of the petitioner ”. That would seem to be a conclusion drawn by respondent from the plans and from what someone may have told respondent. Examining the elaborate plans for this elaborate dwelling, I cannot find any evidence to support that conclusion. No other reasons are given in the return to account for respondent’s denial of petitioner’s application. It would seem that the denial was not based upon proof of any kind.
This court fully appreciates that the petition sounds in mandamus while I have searched the record as I would in a certiorari application. I have done that because I recognize no defense whatever to a mandamus order where as the return seems to indicate respondent came to its decision after some form of hearing or investigation. Article 78 of the Civil Practice Act, as amended in 1937 (L. 1937, ch. 526), allows consideration, and relief without rigidly holding the applicant to the form of relief he applied for (Tripp’s Guide to Motion Practice [Bey. ed.], p. 444).
No local ordinance defining the words “ one family house ” or “ two family house ” has been called to my attention. No meaning may be ascribed to accepted legal terms except the legal definitions of those terms. It would seem that as far as
There is no provision in respondent’s Building Zone Ordinance stating when and under what conditions a certificate of occupancy should be issued. The only reference to the subject is section 504-a of article V. It seems that petitioner has established a clear legal right to the certificate of occupancy for which she applied. A peremptory order, with costs, directing its issue will be submitted.