IN RE: Lawrence C. DOWNES (2005)

In a consolidated proceeding pursuant to CPLR article 78 to review two determinations of the respondent Town of Southampton Zoning Board of Appeals dated January 6, 2000, and August 16, 2001, respectively, which granted variances for the construction of a single-family residence on the property of the respondent Carol Boye, the petitioner appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Suffolk County (Molia, J.), dated May 20, 2003, as granted the respondents' motion for summary judgment dismissing the petition as academic, in effect, dismissed the proceeding, and denied as academic the petitioner's cross motion for leave to enter a default judgment or for summary judgment.

ORDERED that the order and judgment is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The petitioner sought to review two determinations of the respondent Town of Southampton Zoning Board of Appeals which granted variances for the construction of a single-family residence on the property of the respondent Carol Boye, which adjoins the petitioner's property.   Since the construction of the dwelling was completed while this matter was pending in the Supreme Court, and the petitioner failed to move in the Supreme Court for a preliminary injunction to enjoin the construction of the subject dwelling, the petitioner failed to preserve his rights pending judicial review (see Matter of Hudson Val. Nursery v. Planning Bd. of Town of Orangetown, 306 A.D.2d 283, 284, 760 N.Y.S.2d 353;  Matter of Padavan v. City of New York, 291 A.D.2d 561, 738 N.Y.S.2d 249;  cf. Matter of Imperial Improvements v. Town of Wappinger Zoning Bd. of Appeals, 290 A.D.2d 507, 736 N.Y.S.2d 409;  Matter of Gorman v. Town Bd. of Town of E. Hampton, 273 A.D.2d 235, 709 N.Y.S.2d 433;  see also Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172-173, 746 N.Y.S.2d 429, 774 N.E.2d 193).

Accordingly, in the absence of bad faith in completing construction, the Supreme Court properly dismissed the proceeding as academic (cf. Matter of Manglaviti v. Kozakiewicz, 6 A.D.3d 717, 775 N.Y.S.2d 179;  Matter of Riley v. Dowling, 221 A.D.2d 446, 633 N.Y.S.2d 554).   Therefore, the Supreme Court correctly denied as academic the petitioner's cross motion for a leave to enter default judgment or for summary judgment.