IN RE: Armando MARASCO

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

IN RE: Armando MARASCO, Respondent, v. ZONING BOARD OF APPEALS OF the VILLAGE OF WESTBURY, etc., et al., Appellants.

Decided: September 29, 1997

Before BRACKEN, J.P., and ROSENBLATT, GOLDSTEIN and LUCIANO, JJ. Kraemer & Mulligan, Westbury (Dwight D. Kraemer, of counsel), for appellants. Meyer, Suozzi, English & Klein, P.C., Mineola (A. Thomas Levin and Michael Ciaffa, 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 Westbury dated March 18, 1996, which, after a hearing, denied the petitioner's application for a building permit, the appeals are from (1) a decision of the Supreme Court, Nassau County (McCarty, J.), dated October 7, 1996, which determined that “the petitioner is entitled to judgment remanding this matter to the Zoning Board of Appeals with a direction that the * * * Board reject the determination of * * * [Michelle] Depew that petitioner's proposed use violates section 50-156 of the Westbury Code”, and (2) a judgment of the same court dated November 7, 1996, which, inter alia, (a) granted the petition, (b) vacated and annulled the determination of the Zoning Board of Appeals of the Village of Westbury, and (c) directed the Zoning Board of Appeals of the Village of Westbury to issue a determination overruling the determination of Michelle Depew.

ORDERED that the appeal from the decision is dismissed as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that the judgment is reversed, on the law, the petition is denied, the determination is confirmed, and the proceeding is dismissed on the merits;  and it is further,

ORDERED that the appellants are awarded one bill of costs.

 While the instant appeal was pending, the Code of the Village of Westbury (hereinafter the Code) was amended to prohibit the petitioner's proposed use for his site (see, Local Laws, 1997, No. 1 of the Village of Westbury §§ 50-149, 50-156).   Absent certain exceptions that are not present in the case before us, the law as it exists at the time a decision is rendered on an appeal is controlling (see, Matter of Buffolino v. Board of Zoning and Appeals of Incorporated Village of Westbury, 230 A.D.2d 794, 646 N.Y.S.2d 179;  Matter of Semerjian v. Vahradian, 186 A.D.2d 202, 587 N.Y.S.2d 758;  Matter of Hazzard v. Moraitis, 172 A.D.2d 753, 754, 569 N.Y.S.2d 140;  Matter of Shiloh Gospel Chapel v. Roer, 170 A.D.2d 608, 566 N.Y.S.2d 382).   Accordingly, the petitioner is no longer entitled to a building permit as of right.   The petitioner failed to establish “special facts” indicating that the Village of Westbury acted in bad faith when it amended the Code, which would permit application of the prior zoning ordinance (see, Matter of Pokoik v. Silsdorf, 40 N.Y.2d 769, 390 N.Y.S.2d 49, 358 N.E.2d 874;  Matter of Buffolino v. Board of Zoning and Appeals of Incorporated Vil. of Westbury, supra;  Matter of Semerjian v. Vahradian, supra).   Therefore, the Supreme Court's judgment must be reversed and the determination denying the petitioner's application for a permit confirmed.

MEMORANDUM BY THE COURT.

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