Opinion
Argued November 23, 1999
December 20, 1999
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Village of Huntington Bay Zoning Board of Appeals, dated May 21, 1998, which remitted the petitioner's application for a building permit to the Building Inspector of the Village of Huntington Bay for the purpose of submitting further documentation, the appeal is from a judgment of the Supreme Court, Suffolk County (Mullen, J.), dated November 2, 1998, which denied the petition and dismissed the proceeding.
Flynn Flynn, Huntington, N.Y. (Robert J. Flynn, Jr., of counsel), for appellant.
Lamb Barnosky, LLP, Melville, N.Y. (Robert H. Cohen and James F. Gesualdi of counsel), for respondents.
SONDRA MILLER, J.P., CORNELIUS J. O'BRIEN, LEO F. McGINITY, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The petitioner, Crystal Pond Homes, Inc. (hereinafter Crystal Pond), applied to the Building Inspector of the Village of Huntington Bay for a building permit. The Building Inspector denied the application and Crystal Pond appealed the denial to the Village of Huntington Bay Zoning Board of Appeals (hereinafter the ZBA), and applied for an area variance because its lot was too small to meet the zoning requirement. The ZBA remitted the matter to the Building Inspector to enable Crystal Pond to submit building plans and a topographic map, which are normally required as part of a building permit application.
The Supreme Court properly dismissed this proceeding on the ground that the ZBA had not made a final determination which was subject to judicial review in a proceeding pursuant to CPLR article 78 (see, Matter of Hawco v. State of N.Y. Div. of Hous. Community Renewal, 225 A.D.2d 469 ; Matter of Delafield 246 Corp. v. Department of Bldgs. of City of N.Y., 218 A.D.2d 613 ; CPLR 7801[1]). Moreover, Crystal Pond improperly commenced this proceeding before exhausting its administrative remedies (see, Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57 ; Matter of Delafield 246 Corp. v. Department of Bldgs. of City of N.Y., supra).
S. MILLER, J.P., O'BRIEN, McGINITY, and SMITH, JJ., concur.