From Casetext: Smarter Legal Research

Two Wheel Corp. v. Fagiola

Appellate Division of the Supreme Court of New York, Second Department
Sep 26, 1983
96 A.D.2d 1098 (N.Y. App. Div. 1983)

Opinion

September 26, 1983


In an action, inter alia, for a judgment declaring that plaintiff may lawfully occupy certain premises as a nonconforming use, plaintiff appeals from an order of the Supreme Court, Nassau County (Young, J.), dated December 11, 1981, which denied its motion for summary judgment on its first cause of action. Order affirmed, with costs. As Special Term correctly ruled, summary judgment cannot properly be awarded to the plaintiff on its first cause of action because of the existence of a triable issue of fact, namely, whether the plaintiff's failure to resume its nonconforming use of the subject premises within the six-month period fixed by subdivision H of section 60-3 of article III of the Code of Ordinances of the Village of Mineola was caused by unlawful acts of the defendant village taken to frustrate such timely resumption. There is, however, no issue respecting plaintiff's intent to resume or abandon such use. The very purpose of the code provision is to phase out a nonconforming use regardless of the landowner's intentions, if any (see Matter of Sun Oil Co. v Board of Zoning Appeals, 57 A.D.2d 627, affd on mem at App. Div. 44 N.Y.2d 995; Matter of Hanna v Crossley, 40 A.D.2d 577, 578; Baml Realty v State of New York, 35 A.D.2d 857; Lytle Co. v Clark, 491 F.2d 834, 837). Gibbons, J.P., O'Connor, Brown and Boyers, JJ., concur.


Summaries of

Two Wheel Corp. v. Fagiola

Appellate Division of the Supreme Court of New York, Second Department
Sep 26, 1983
96 A.D.2d 1098 (N.Y. App. Div. 1983)
Case details for

Two Wheel Corp. v. Fagiola

Case Details

Full title:TWO WHEEL CORP., Appellant, v. PETER M. FAGIOLA, as Building Inspector of…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Sep 26, 1983

Citations

96 A.D.2d 1098 (N.Y. App. Div. 1983)

Citing Cases

Union Square Ass'n v. Marc Lounge

Intent to abandon is totally irrelevant. See C.F. Lytle Co. v. Clark, 491 F.2d 834 (10th Cir. 1974); Prudco…

Pica v. Bennett

The effect of New York City Zoning Resolution § 52-61 is to supply the element of intent. The discontinuance…