1833 Nostrand Avenue Corp. v. Chin

In a proceeding pursuant to CPLR article 78 to review so much of a determination of the Board of Standards and Appeals of the City of New York dated January 29, 2002, as, after a hearing, imposed a condition upon the granting of a use variance, the petitioners appeal from a judgment of the Supreme Court, Kings County (Knipel, J.), dated May 3, 2002, which denied the petition and dismissed the proceeding. Ordered that the judgment is affirmed, with costs. Contrary to the appellants’ contention, upon granting the requested use variance, the Board of Standards and Appeals for the City of New York (hereinafter the Board) properly limited the proposed hours of operation of the appellants’ store so that the retail use conformed to the character of the surrounding retail and residential neighborhood (see Matter of St. Onge v Donovan, 71 NY2d 507, 516-518; Matter of Dexter v Town Bd. of Town of Gates, 36 NY2d 102, 105; New York City Zoning Resolution §§ 21-00 [c], [i]; 72-21 [c]; 72-22; cf. Province of Meribah Socy. of Mary v Village of Muttontown, 148 AD2d 512). Since the Board’s determination was based upon substantial evidence in the record and had a rational basis, the Supreme Court properly upheld the determination (see Ifrah v Utschig, 98 NY2d 304, 308; Matter of Sasso v Osgood, 86 NY2d 374, 384; Matter of Fuhst v Foley, 45 NY2d 441, 444; Matter of DaSilva v Zoning Bd. of Appeals of Vil. of Mineola, 266 AD2d 458, 459). The appellants’ remaining contentions are without merit. Smith, J.P., Goldstein, Crane and Rivera, JJ., concur.