Opinion
April 17, 2001.
Determination of respondent New York City Board of Standards and Appeals (BSA), dated October 12, 1999, which approved the application of developer respondents for a zoning variance to construct a five-story plus penthouse commercial building, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, New York County [Sheila Abdus-Salaam, J.], entered November 16, 2000), dismissed, with one bill of costs to 218 East 59thAssociates, LLC and D D 59th Street Building Company, LLC, payable by petitioner.
Howard S. Weiss, for Petitioner.
Joseph I. Lauer, Jerome Tarnoff, Paul D. Selver, for Respondents.
Before: Sullivan, P.J., Andrias, Ellerin, Rubin, Buckley, JJ.
As an initial matter, the determination of respondent BSA here was administrative rather than quasi-judicial (see, Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384, n2) and, thus, should have been reviewed, and not transferred, by Supreme Court (see, In re Kent Ave. Block Assn. v. New York City Bd. of Standards and Appeals, 280 A.D.2d 423, 2001 N Y App. Div. LEXIS 1902). We nonetheless decide the matter on the merits in the interest of judicial economy (see, In re Kent Ave. Block Assn., supra;Matter of Supkis v. Town of Sand Lake Zoning Bd. Of Appeals, 227 A.D.2d 779, 780).
The zoning board's determination may not be set aside unless the record reveals illegality, arbitrariness or an abuse of discretion, and will be sustained if it has a rational basis and is supported by substantial evidence (see, Matter of Soho Alliance v. New York City Bd. of Standards Appeals, 95 N.Y.2d 437, 440). Despite petitioner's numerous challenges, "it cannot be said that there was an absence of substantial evidence to support the Board's findings as to each of the five requirements necessary to issue the proposed . . . variances here" (id. at 442). Accordingly, the challenged determination must be confirmed.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.