IN RE: Mary J. DIEM

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

IN RE: Mary J. DIEM, etc., Respondent, v. David TEITELBAUM, etc., et al., Appellants.

Decided: September 21, 1998

Before MILLER, J.P., KRAUSMAN, McGINITY and LUCIANO, JJ. James G. Sweeney, P.C., Goshen, N.Y., for appellants. Birbrower, Montalbano, Condon & Frank, P.C., New City, N.Y. (Sydell J. Green of counsel), for respondent.

In a proceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Village of Tuxedo Park, dated November 6, 1995, which affirmed a determination of the Code Enforcement Officer of the Village of Tuxedo Park, dated January 9, 1995, that two adjoining lots had merged, the appeal is from a judgment of the Supreme Court, Orange County (Angiolillo, J.), dated August 29, 1997, which granted the petition and annulled the determination.

ORDERED that the judgment is affirmed, without costs or disbursements.

From 1969 to 1973, lots 104-1-16.1 and 104-1-16.2 for the tax map of the Village of Tuxedo Park were held by a husband and wife as tenants by the entirety.   In 1973, lot 104-1-16.1 was conveyed to the wife alone, but lot 104-1-16.2 remained in joint ownership.   Thereafter, lot 104-1-16.1 was conveyed to Mary J. Diem by the trustees of the wife's residuary trust under her will.   On the same date, lot 104-1-16.2 was conveyed to Robert Diem by the executors of the estate of the husband.   As there was no specific merger clause in the Village of Tuxedo's zoning ordinance during the time when the two lots were held in joint ownership, the two lots did not merge (see, Matter of Allen v. Adami, 39 N.Y.2d 275, 383 N.Y.S.2d 565, 347 N.E.2d 890).

MEMORANDUM BY THE COURT.

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