South Path Realty Corp. v. Howe

In a proceeding pursuant to article 78 of the CPLR to review respondent’s rescission of three building permits, petitioner appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Suffolk County, dated February 14, 1969, as denied the application as to two of the permits. Judgment affirmed insofar as appealed from, with costs. Although, in our opinion, Special Term erred in treating the structures of the contemplated garden apartment development as distinct units instead of as an integrated whole (see City of Buffalo v. Chadeayne, 134 N. Y. 163; Matter of Harris v. Coffey, 6 A D 2d 898; Telimar Homes v. Miller, 14 A D 2d 586), it is nevertheless our view that Special Term properly denied the application as to two of the three building permits. In our opinion, the initial representation made by petitioner in applying for a change of zoning, that the proposed project would not exceed 60 units, was a material one, and respondent was not estopped from seeking to hold petitioner to its original statement of intent. Accordingly, respondent, having acted promptly, was justified in requesting a halt in construction and thereafter revoking the two permits which Special Term has refused to restore (cf. Town of Greenburgh v. Buser, 285 App. Div. 1090). Christ, Acting P. J., Munder, Martuscello and Kleinfeld, JJ., concur; (Beldock, P. J., deceased.)