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Town Entitled To Injunctive Relief for Violation of Certificate of Occupancy
Town of North East v. Vitiello
NYLJ 3/9/18., P. 30., Col. 3.
AppDiv, Second Dept.
(memorandum opinion)
In the town's action for injunctive relief, landowners appealed from Supreme Court's grant of an injunction restraining landowners and their successors and assigns from occupying a residence until a certificate of occupancy is issued. The Appellate Division affirmed, upholding the town's right to injunctive relief.
Landowners built a residence on property that did not meet the town's requirements for access to a public street. Landowners then applied to the zoning board of appeals (ZBA) for a variance to allow issuance of a certificate of occupancy for the residence. The ZBA granted the variance subject to conditions. Landowners did not challenge the certificate or the conditions. The town then brought this action to enjoin occupancy of the residence without the certificate of occupancy. Supreme Court granted the injunction, and landowners appealed.
In affirming, the Appellate Division emphasized that landowners had not satisfied the conditions imposed by the ZBA, and that landowners were occupying the residence in violation of town code provisions which require issuance of a certificate of occupancy before occupation of a building or structure. Under the circumstances, the town was entitled to a permanent injunction.
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