Circle Courts, Inc. v. Lane

Determination unanimously confirmed, without costs. Memorandum: In confirming the determination by the Zoning Board of Appeals, we point out that the matter was improperly transferred to this court. Subdivision 7 of section 267 of the Town Law provides that in an article 78 proceeding brought to review a decision by a Zoning Board of Appeals the court at Special Term shall itself dispose of the cause on the merits, determining all questions which may be presented for determination. However, since CPLR 7804 (subd. [g]) continues the power in this court to dispose of all issues in a proceeding improperly transferred, we have considered the petition on the merits and have determined that the Zoning Board’s refusal to grant a variance should be confirmed under Matter of Otto v. Steinhilber ( 282 N. Y. 71 ). (Review of determination of Board of Zoning Appeals, refusing a variance, transferred by order of Erie Special Term.) Present — Bastow, J. P., Goldman, Henry and Del Vecehio, JJ.