IN RE: Lucia RIINA

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

IN RE: Lucia RIINA, Appellant, v. Jack BAUM, et al., Respondents.

Decided: December 30, 2002

DAVID S. RITTER, J.P., DANIEL F. LUCIANO, BARRY A. COZIER and REINALDO E. RIVERA, JJ. Aldo V. Vitagliano, P.C., Rye, N.Y. (Phillip A. Grimaldi, Jr., of counsel), for appellant. David C. Dempsey, Town Attorney, Valhalla, NY, for respondent Zoning Board of Appeals of the Town of Mount Pleasant. Shamberg Marwell Hocherman Davis & Hollis, P.C., Mount Kisco, N.Y. (Adam L. Wekstein and Henry M. Hocherman of counsel), for respondent Roc-Bonnie Associates, Inc.

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Mount Pleasant, dated February 8, 2001, which, after a hearing, granted the application of the respondent Roc-Bonnie Associates, Inc., for two area variances, the appeal is from a judgment of the Supreme Court, Westchester County (Lefkowitz, J.), entered October 15, 2001, which confirmed the determination and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

Contrary to the petitioner's contention, the prior application by the respondent Roc-Bonnie Associates, Inc. (hereinafter Roc-Bonnie), for two area variances was factually distinguishable from the instant application.   Accordingly, the Zoning Board of Appeals of the Town of Mount Pleasant (hereinafter the ZBA) was not precluded from considering the second application on its merits (see Matter of Josato, Inc. v. Wright, 288 A.D.2d 384, 733 N.Y.S.2d 214;  Matter of Peccoraro v. Humenik, 258 A.D.2d 465, 684 N.Y.S.2d 588).

With respect to the merits, the Supreme Court correctly found that the ZBA properly considered all of the factors set forth in Town Law § 267-b.   The ZBA's determination that the variances would not cause an undesirable change in the character of the neighborhood is supported by substantial evidence in the record and has a rational basis (see Matter of Ifrah v. Utschig, 98 N.Y.2d 304, 746 N.Y.S.2d 667, 774 N.E.2d 732;  Matter of Sasso v. Osgood, 86 N.Y.2d 374, 633 N.Y.S.2d 259, 657 N.E.2d 254;  Matter of DeSena v. Board of Zoning Appeals Inc. Vil. of Hempstead, 45 N.Y.2d 105, 408 N.Y.S.2d 14, 379 N.E.2d 1144;  Matter of Tarantino v. Zoning Bd. of Appeals of Town of Brookhaven, 228 A.D.2d 511, 644 N.Y.S.2d 296).

The petitioner's remaining contentions either are not properly before this court (see Matter of Vil. of Tarrytown v. Planning Bd. of Vil. of Sleepy Hollow, 292 A.D.2d 617, 741 N.Y.S.2d 44, lv. denied 98 N.Y.2d 609, 746 N.Y.S.2d 693, 774 N.E.2d 758;  Taormino v. State of New York, 286 A.D.2d 490, 729 N.Y.S.2d 757), or are without merit.

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