IN RE: Edward HALPERIN

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Edward HALPERIN, et al., petitioners, v. BOARD OF APPEALS ON ZONING OF CITY OF NEW ROCHELLE, et al., respondents.

Decided: December 27, 2005

A. GAIL PRUDENTI, P.J., SONDRA MILLER, ROBERT A. SPOLZINO, and MARK C. DILLON, JJ. Edward M. Lieberman, Bedford, N.Y., for petitioners. Kathleen E. Gill, Deputy Corporation Counsel, New Rochelle, N.Y., for respondent Board of Appeals on Zoning of City of New Rochelle. Delbello Donnellan Weingarten Tartaglia Wise & Wiederkehr, LLP, White Plains, N.Y. (Alan D. Scheinkman, Peter J. Wise, and William E. Dumke of counsel), for respondent Young Israel of New Rochelle.

Proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Appeals on Zoning of the City of New Rochelle dated February 8, 2005, which granted the request of the respondent Young Israel of New Rochelle for an extension of the terms of certain area variances previously granted on February 4, 2003, in connection with the proposed construction of a house of worship.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with one bill of costs to the respondents.

The Supreme Court erroneously transferred this proceeding to this court pursuant to CPLR 7804(g) (see Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384 n. 2, 633 N.Y.S.2d 259, 657 N.E.2d 254;  Matter of Halperin v. City of New Rochelle, 24 A.D.3d 768, 809 N.Y.S.2d 98 [decided herewith] ).   Nonetheless, this court will decide the case on the merits in the interest of judicial economy (see Matter of Halperin v. City of New Rochelle, supra;  Seaview Assn. of Fire Is. v. Department of Envtl. Conservation of State of N.Y., 123 A.D.2d 619, 506 N.Y.S.2d 775).

 Contrary to the petitioners' contention, the respondent Board of Appeals on Zoning of the City of New Rochelle (hereinafter the Zoning Board) had authority to extend the term of any area variance it had previously granted to the respondent Young Israel of New Rochelle (hereinafter Young Israel) (see Matter of New York Life Ins. Co. v. Galvin, 35 N.Y.2d 52, 59-60, 358 N.Y.S.2d 724, 315 N.E.2d 778;  Matter of Center Sq. Assn. v. City of Albany Bd. of Zoning Appeals, 19 A.D.3d 968, 971-972, 798 N.Y.S.2d 756;  Gina Petroleum v. Zoning Bd. of Appeals of Town of Wappinger, 127 A.D.2d 560, 511 N.Y.S.2d 363;  Matter of Scarpati v. Feriola, 8 A.D.2d 111, 115-116, 186 N.Y.S.2d 927;  see also General City Law § 81-b[2], [4] ).

 Moreover, the Zoning Board's grant of an extension was not an abuse of discretion.   Young Israel reasonably delayed commencement of construction because litigation regarding its variance application was pending, thus providing a reason as to why the extension was needed (see Matter of Center Sq. Assn. v. City of Albany Bd. of Zoning Appeals, supra at 972, 798 N.Y.S.2d 756).

 The Court of Appeals has held that a request for an extension of a variance need not be treated as a new application, and is therefore not subject to otherwise applicable public notice and hearing requirements (see Matter of New York Life Ins. Co. v. Galvin, supra at 59, 358 N.Y.S.2d 724, 315 N.E.2d 778;  see also Matter of Center Sq. Assn. v. City of Albany Bd. of Zoning Appeals, supra at 972, 798 N.Y.S.2d 756;  Matter of New York Life Ins. Co. v. Murdock, 8 A.D.2d 191, 192, 186 N.Y.S.2d 778).   Thus, the Zoning Board's determination may not be challenged on that ground.   Because the Zoning Board nonetheless heard and considered both oral and written objections to the extension at a public meeting, there is no basis in any event for the petitioners' contention that the determination was invalid for lack of notice or a public hearing (see Matter of Petronella v. Zoning Bd. of Appeals of City of Yonkers, 138 A.D.2d 712, 526 N.Y.S.2d 525).

Therefore, the Zoning Board appropriately granted Young Israel's request for an extension of all 12 of its variances.

The petitioners' remaining contention is without merit.

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