Posted by: Patricia Salkin | July 8, 2019

NY Appellate Court Reinstates Lawsuit Challenging Variance Denials

This post was authored by Amy Lavine, Esq.

A New York appeals court held in June that a lawsuit challenging the denial of certain zoning variances was improperly dismissed on procedural grounds. In particular, the trial court found that the petition was defective because the property owner had failed to submit copies of his variance applications or transcripts from any of the proceedings regarding his variance requests, and also because he omitted “an affidavit from a person with knowledge in support of [his] petition.” In reversing the trial court’s dismissal, the Appellate Division noted that New York’s civil procedure statutes allow petitioners to submit affidavits and other documentary evidence, but there is no requirement that pleadings must include affidavits or other written proof. The trial court was also incorrect in dismissing the petition based on the property’s owners failure to provide transcripts, because the civil procedure statutes specified that the respondent, not the petitioner, “shall file with the answer a certified transcript of the record of the proceedings under consideration….” Based on these errors, the court reinstated the petition and remanded the case to the trial court for further proceedings.


Matter of D’Souza v Board of Appeals of the Town of Hempstead, 2019 NY Slip Op 04381 (2d Dept. 6/5/19).

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