McCory v. Langdon , 269 A.D. 701 ( 1945 )

Order granting respondent’s application to direct appellant building inspector to issue a certificate of conformance in respect of the use of certain real property in the Village of East Rockaway, Nassau County, and denying appellant’s cross motion to dismiss the petition on certain objections in point of law, modified on the law and the facts by striking therefrom the recital that no triable issue of fact is raised, etc., and by striking out the first and second ordering paragraphs and inserting in their place a provision permitting appellant to serve an answer within five days from the service upon him of a copy of the order to be entered hereon, following which there may be a resubmission of the matter to the court for appropriate action. As thus modified the order is unanimously affirmed, without costs. The objections in point of law were without merit. The fact that the respondent had erroneous recourse to an application for a variance did not bar her from seeking a certificate on the theory that she was entitled thereto as a consequence of rights which vested in her prior to October, 1941, which rights made a variance unnecessary. The appellant, however, was entitled to challenge respondent’s contention that the premises were used as a nursing home in the nature of a sanatorium prior to October 21, 1941. The denial of such an opportunity through refusal to permit the service of an answer was an improvident exercise of discretion. Present — Close, P. J., Hagarty, Carswell, Adel and Aldrich, JJ.