Opinion
May 8, 1967
In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Board of Zoning Appeals which denied petitioner's application for a variance to permit construction of a residential dwelling on a substandard plot, judgment of the Supreme Court, Nassau County, dated January 5, 1966, which dismissed the petition, affirmed, with costs to respondents-appellants. Appeal from decision dated July 16, 1965, dismissed, without costs. No appeal lies from a decision. Cross appeal from order of said court dated September 17, 1965, dismissed insofar as appealed from, without costs, as academic. Petitioner urged the doctrine of practical difficulty, claiming that the plot became substandard by the State's condemnation of about two thirds of an acre of the plot, leaving little more than a third of an acre. In our opinion, the proof adduced was adequate to show that the prior owner of record received damages in condemnation which covered not only the land taken but also included consequential damages for the subject lot, that which remained after the taking. Under the circumstances, the prior owner received a "full payment", and petitioner, as successor in interest, could not in effect utilize the present variance proceeding as a vehicle for having the subject property twice redressed for the same detriment (cf. Matter of Karras v. Michaelis, 26 A.D.2d 640). Ughetta, Acting P.J., Christ, Brennan, Rabin and Hopkins, JJ., concur.