Cohen v. Silva — 228 A.D.2d 593

Majority

p. 593

In the Matter of Aaron Cohen et al., Respondents, v Gaston Silva et al., Appellants.

[644 NYS2d 754]

Initially, we note that the Supreme Court improvidently exercised its discretion in remitting this matter without explaining the grounds upon which the remittitur was made. In any event, this matter need not be remitted to the Supreme Court to clarify its order since it is clear that the determination of the Board of Standards and Appeals of the City of New York (hereinafter the Board) denying the petitioners’ application for a zoning variance was based on substantial evidence in the record as a whole and was neither illegal nor arbitrary and capricious.

As the Board properly determined, the petitioners did not meet the "practical difficulties” requirement contained in New York City Zoning Resolution § 72-21 (a). Without the proposed extension, the petitioners are fully capable of utilizing their property within the parameters of the zoning ordinance. The

p. 594

petitioners’ desire to increase the number of bedrooms and to add a family room and a deck is a personal objective which is insufficient to meet the "practical difficulties” requirement (see, Matter of Fuhst v Foley, 45 NY2d 441 ; Matter of Montalbano v Silva, 204 AD2d 457 ; Matter of Karneil v Bennett, 186 AD2d 742 ; Matter of Feit v Bennett, 168 AD2d 495 ). Rosenblatt, J. P., Sullivan, Copertino, Santucci and Goldstein, JJ., concur.

Cases cited

Fuhst v. Foley 45 NY2d 441 N.Y. 1978-10-26 p. 594
Montalbano v. Silva 204 AD2d 457 N.Y. App. Div. 1994-05-09 p. 594
Feit v. Bennett 168 AD2d 495 N.Y. App. Div. 1990-12-10 p. 594