APPEAL from an order of the Supreme Court at Special Term (SAYPOL, J.), entered November 5, 1954, in New York County, which denied a motion by defendant for summary judgment dismissing the complaint.
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Simon H. Rifkind of counsel (J. Jacques Stone and Edward N. Costikyan with him on the brief; Paul, Weiss, Rifkind,
Wharton & Garrison, attorneys), for appellant.
Paxton Blair of counsel (Raymond J.
Horowitz with him on the brief; Paxton Blair, attorney), for
Defendant Lincoln Parking Corporation (hereinafter called Lincoln) has for more than twenty years maintained an open parking lot, accommodating 350 cars, on the north side of 34th Street between Eighth and Ninth Avenues. The parking lot, until recently, was immediately adjacent to the structure occupied as a synagogue by plaintiff. About two years ago a building was erected on what had been the westerly portion of the original parking space. The easterly portion, separated from the synagogue by the new building, is still operated as an open parking lot.
On December 30, 1953, Lincoln applied, pursuant to section 21-F of the Zoning Resolution of the City of New York, for approval of the erection upon the site of the present parking lot of a modern, fireproof public garage designed to hold 450 cars. Section 21-F, to the extent that it is pertinent, provides as follows: '(b) Except where § 21-A of this Resolution applies in other than manufacturing and unrestricted use districts, the City Planning Commission may by resolution after public notice and hearing approve the use, subject to appropriate conditions and safeguards, of any building or premises as a garage or parking facility for one hundred and fifty (150) or more motor vehicles * * *. Such resolution of approval, together with a copy of the site plan, shall be filed with the Secretary of the Board of Estimate within five (5) days of its adoption. It shall take effect immediately upon approval by a majority vote of the Board of Estimate. * * * (c) * * * Nothing contained in this Section shall divest the Board (of Standards and Appeals) of its jurisdiction to vary the terms of the Zoning Resolution as provided in § 21 thereof. An
applicant who has failed to receive a site approval under this Section may apply to the Board under § 7 to vary in the instant case the application of the Zoning Resolution.'
The proposed garage lay in a retail use district, and so had to conform to the provisions of section 21-A. Section 21-A, as it then read, prohibited the operation of garages having a vehicular entrance within 200 feet from an entrance or exit of a school maintained by an established religious group.
On March 3, 1954, defendant city planning commission unanimously passed a resolution approving Lincoln's application to construct a garage of specified character, dimensions and capacity. One of a number of circumscribing conditions was 'That no facilities shall be provided for gasoline service or oil selling or the repairing of motor vehicles'. On March 11, 1954, defendant board of estimate unanimously approved the action of the city planning commission.
The actions of both the planning commission and the board of estimate followed public hearings, duly noticed, at both of which plaintiff appeared and opposed the application strenuously. Plaintiff's major contention was that it maintained a school in the synagogue building and because of that fact, under section 21-A of the zoning resolution as it read prior to amendment, the commission lacked the power in the first instance to authorize construction of the proposed garage.
Plaintiff had conducted a small religious school for a number of years, which was within the proscribed distance from the projected garage. In the year 1952-1953, the school had ten pupils. In 1953-1954, it had no pupils or teachers and was not in operation. Plaintiff termed this a temporary suspension of the school, caused by ...