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MATTER LEON L. LUNDEN ET AL. v. MICHAEL N. PETITO ET AL. (07/08/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


July 8, 1968

IN THE MATTER OF LEON L. LUNDEN ET AL., CONSTITUTING THE BOARD OF EDUCATION OF UNION FREE SCHOOL DISTRICT NO. 21, TOWN OF OYSTER BAY, RESPONDENTS,
v.
MICHAEL N. PETITO ET AL., CONSTITUTING THE TOWN BOARD OF THE TOWN OF OYSTER BAY, ET AL., APPELLANTS. IN THE MATTER OF RAYMOND J. AMENDOLA ET AL., APPELLANTS-RESPONDENTS, V. MICHAEL N. PETITO ET AL., CONSTITUTING THE TOWN BOARD OF THE TOWN OF OYSTER BAY, RESPONDENTS-APPELLANTS

Two judgments of the Supreme Court, Nassau County, each in one of the two above entitled proceedings, and dated August 7, 1967, reversed, on the law, without costs, and petitions dismissed, solely upon the ground that the issues have become moot (cf. Matter of Jordan Cemetery Assn. v. Cemetery Bd. of State of N. Y., 19 A.D.2d 540). No questions of fact have been considered.

Brennan, Acting P. J., Rabin, Hopkins, Benjamin and Munder, JJ., concur.

These proceedings were instituted to review two determinations by the Town Board of the Town of Oyster Bay, the first (in the first entitled proceeding) granting an application by Raymond J. Amendola and Jennie Amendola for a special exception required by the Town's Building Zone Ordinance, then in effect, to permit the erection of a multiple dwelling, and the second (in the second entitled proceeding) rescinding the first and denying the application. The Special Term annulled both determinations and remitted the matter to the Town Board for rehearing and reconsideration. Subsequent to said judgments and the taking of these appeals, the ordinance was amended so as to prohibit completely the erection of multiple dwellings in the use district in which the property was located. An appellate court must decide a case on the basis of the law as it exists at the time of its decision; the Amendolas had no vested right to the erection of a multiple dwelling at the time of the amendment of the zoning ordinance; and the ordinance as it now exists is controlling and prohibits the use which they seek to have approved (cf. Matter of Haussman v. Oatley, 285 App. Div. 832; Matter of Town Bd. of Town of Huntington v. Plonski, 13 A.D.2d 704, affd. 10 N.Y.2d 1035; Matter of Atlantic Beach Towers Constr. Co. v. Michaelis, 21 A.D.2d 875; Matter of Paliotto v. Dickerson, 22 A.D.2d 929). Accordingly, we do not reach the issues respecting the propriety of the Town Board's actions either in granting or denying the application for the special exception.

19680708

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