Town of Greece v. Smith

Judgment affirmed, with costs. Memorandum: At the close of plaintiff’s proofs, it appeared that defendant was erecting a building on his premises, pursuant to and in accordance with a permit granted him, by the zoning board of appeals of the plaintiff town, upon its allowance of a variance pursuant to section 267 of the Town Law. The reconsideration (if such there were) by the board of appeals of its previous decision upon the same facts was invalid. (Matter of Riker v. Board of Standards & Appeals, 225 App. Div. 570; Matter of Collins v. Board of Standards & Appeals, 253 N. Y. 594; Matter of Reed v. Board of Standards & Appeals, 255 id. 131; People ex rel. Swedish Hospital v. Leo, 120 Misc. 335; affd., 215 App. Div. 696; McGarry v. Walsh, 213 id. 289; Hall v. Walsh, 137 Misc. 448; affd., 221 App. Div. 756. See, also, People ex rel. Smith v. Clarke, 174 N. Y. 259, 263.) Assuming that the board of appeals had jurisdiction in the matter (and there is no proof that it did not have), plaintiff’s remedy — if any — was by review of the board’s action under section 267 of the Town Law. (Baddour v. City of Long Beach, 279 N. Y. 167, decided by the Court of Appeals on November 29, 1938.) The plaintiff’s complaint, therefore, was properly dismissed. All concur. (The judgment dismisses the complaint in an injunction action.) Present — Sears, P. J., Lewis, Cunningham, Taylor and Dowling, JJ. |