Opinion
July 11, 1961
In a proceeding under article 78 of the Civil Practice Act, to review and annul the determination of the Town Board of the Town of Mamaroneck which affirmed the decision of the town's building inspector denying petitioner's demand that he revoke the building permit theretofore issued by him to the corporation, Grew Properties, Inc., for the erection of a 110-family apartment house on its property, the parties appeal as follows: (1) Petitioners appeal from the final order of the Supreme Court, Westchester County, dated April 25, 1960, which denied their petition after trial. (2) The Grew corporation appeals "in conjunction with the appeal by Petitioners" from two intermediate orders of the Supreme Court, Westchester County, dated respectively September 22, 1959 and December 30, 1959, which denied its several pretrial motions to dismiss the petition on the ground of insufficiency and on other grounds. The petitioner Moore is a property owner whose property is directly across the street from the corporation's property in the Town of Mamaroneck. The petitioner Howell Park Association is not a property owner. Final order affirmed, with costs. Appeal from the two intermediate orders dismissed, without costs. In our opinion neither petitioner has standing to bring this proceeding ( Rice v. Van Vranken, 225 App. Div. 179, affd. 255 N.Y. 541; Marcus v. Village of Mamaroneck, 283 N.Y. 325, 332-333; Matter of Blum v. Board of Zoning Appeals, 8 Misc.2d 403; Blumberg v. Hill, 119 N.Y.S.2d 855; Matter of Hatten v. Silver, 19 Misc.2d 1091; Matter of Feldman v. Nassau Shores Estates, 12 Misc.2d 607, affd. 7 A.D.2d 757; Matter of Property Owners Assn. v. Board of Zoning Appeals, 2 Misc.2d 309; Point Lookout Civic Assn. v. Town of Hempstead, 22 Misc.2d 757, affd. 12 A.D.2d 505). In any event, on the merits, we think the assailed building permit was properly issued and is valid, and consequently the refusal to revoke it was justified (cf. Huggins v. Gulf Oil Corp., 5 A.D.2d 747; Effell Realty Corp. v. City of New York, 165 Misc. 176, 179, affd. 256 App. Div. 972, affd. 282 N.Y. 541; Matter of Milton Point Assn. v. Clark, 14 Misc.2d 633, 637). The corporation's appeal from the two intermediate orders must be dismissed for several reasons: (1) such appeal has become academic in view of the affirmance of the final order; (2) the corporation was the prevailing party below, and hence it is not an aggrieved party; (3) its appeal is not "in conjunction with" its adversary's (petitioners') appeal from the final order; and (4) these two intermediate orders were not specified in petitioners' notice of appeal from the final order (see: Civ. Prac. Act, §§ 557, 1304; Matter of Flanagan, 271 App. Div. 101 4; Grabb v. Nicholas, 2 A.D.2d 446, 447; Matter of Kaplan v. Rohan, 7 N.Y.2d 884; Matter of Schwartz, 89 F.2d 172, 173). Nolan, P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.