Opinion
October 7, 1985
Appeal from the Supreme Court, Westchester County (Owen, J.).
Judgment affirmed, with costs.
Petitioner applied on or about February 1, 1984 for a cabaret license to continue a nonconforming use. The six-month period provided for by White Plains Zoning Ordinance § 4.3.2.5, within which any nonconforming use must resume or be deemed discontinued, was tolled until April 12, 1984, the date on which a bankruptcy court ordered a trustee in bankruptcy to deliver a lease to petitioner, by operation of the automatic stay provision of 11 U.S.C. § 362 (see, Matter of IDH Realty v Incorporated Vil. of Mineola, 16 B.R. 55). Therefore, appellants' November 5, 1984 denial of petitioner's application was arbitrary and capricious, because it was only appellants' own retention of the application which prevented resumption of cabaret activity within six months from the date the stay terminated. Lazer, J.P., O'Connor, Niehoff and Kooper, JJ., concur.