New York Court of Appeals, 1983

Prudco Realty Corp. v. Palermo

New York Court of Appeals · Decided September 20, 1983

60 N.Y.2d 656; 455 N.E.2d 483; 467 N.Y.S.2d 830; 1983 N.Y. LEXIS 3363

Cases that cite this one

37 later published cases cite this decision. The 25 that cite it most often are listed here.

US Bank N.A. v. Nelson (Appellate Division of the Supreme Court of New York 2019)
US Bank N.A. v. Nelson (Appellate Division of the Supreme Court of New York 2019)
Hoxsie v. Zoning Board of Appeals (New York Supreme Court 1985)
In re Daniel C. (Appellate Division of the Supreme Court of New York 1984)
Matter of Kshatriya v. Office of Chief Med. Examiner of N.Y. City (Appellate Division of the Supreme Court of New York 2025)
GHI Mktg., Inc. v. Diven (Appellate Division of the Supreme Court of New York 2019)
Andrews, Pusateri, Brandt, Shoemaker & Roberson, P.C. v. Niagara County Sewer District No. 1 (Appellate Division of the Supreme Court of New York 2010)
Wells Fargo Bank Minnesota, National Ass'n v. Mastropaolo (Appellate Division of the Supreme Court of New York 2007)
Village of Chestnut Ridge v. Town of Ramapo (Appellate Division of the Supreme Court of New York 2007)
Todaro v. GEICO General Insurance (Appellate Division of the Supreme Court of New York 2007)
Village of Waterford v. Amna Enterprises, Inc. (Appellate Division of the Supreme Court of New York 2006)
Centaur Properties, LLC v. Farahdian (Appellate Division of the Supreme Court of New York 2006)
Security Pacific National Bank v. Evans (Appellate Division of the Supreme Court of New York 2006)
Zupa v. Paradise Point Ass'n (Appellate Division of the Supreme Court of New York 2005)
Planned Parenthood of Nassau County, Inc. v. Town Board of Oyster Bay (Appellate Division of the Supreme Court of New York 2004)
Klein v. Garfinkle (Appellate Division of the Supreme Court of New York 2004)
Santoro v. Schreiber (Appellate Division of the Supreme Court of New York 1999)
Gilman v. Abagnale (Appellate Division of the Supreme Court of New York 1997)
Continental Capital Corp. v. Fiore (Appellate Division of the Supreme Court of New York 1997)
Central Dover Development Corp. v. Town of Dover (Appellate Division of the Supreme Court of New York 1995)
Prestige Roofing & Siding Co. v. Bivona (Appellate Division of the Supreme Court of New York 1994)
National Ass'n of Independent Insurers v. State (Appellate Division of the Supreme Court of New York 1994)
Charles Offset Co. v. Hobart-McIntosh Paper Co. (Appellate Division of the Supreme Court of New York 1993)
Muchnick v. Alcamo Supply & Contracting Corp. (Appellate Division of the Supreme Court of New York 1991)
Pica v. Bennett (Appellate Division of the Supreme Court of New York 1990)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

Petitioner commenced this article 78 proceeding to review a determination of the zoning board of appeals (Board) that granted an application of the intervenorrespondent-appellant, S. F. Shopping Center, Inc., for a certificate of existing use for the operation of a gasoline service station. S. F. Shopping Center, Inc., interposed its answer on August 20,1981, without asserting the petitioner’s lack of standing to challenge the Board’s determination pursuant to CPLR 3211 (subd [a], par 3). Inasmuch as CPLR 3211 (subd [e]) provides that such a defense is waived if not raised either by motion or in the responsive pleading, S. F. Shopping Center, Inc., must be deemed to have waived its objection to petitioner’s standing. We note parenthetically that only the respondent board of appeals filed an amended answer pursuant to CPLR 3025 (subd [a]) and no standing objection was raised there either.

With respect to the Board’s determination that the nonconforming use had not been abandoned, we note that the Brookhaven ordinance provides that “[wjhenever a nonconforming use has been discontinued, abandoned or not used for a period of one (1) year or more, such use shall not thereafter be reestablished and any future use shall be in conformity with the provisions of this ordinance.” (Code of Town of Brookhaven, § 85-431, subd A, par [5] [emphasis added].) Thus, the property owner’s intent, the owner’s lease with the tenant and the presence of underground storage tanks is simply not enough to demonstrate that the *658property was used as a gasoline service station throughout the period in question. Indeed, the respondents conceded at the hearing on this matter that the gasoline pumps had been removed and that the building on the premises was used as a tobacco shop for more than a year before it became vacant. In light of this, it is clear that the Board’s decision was not based on substantial evidence. (See 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176.)

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Simons concur.

On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 NYCRR 500.2 [g]), order affirmed, with costs, in a memorandum.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.