MATTER OF SEIDNER v. Town of Colonie

55 N.Y.2d 613 (1981)

In the Matter of Roslyn F. Seidner, Appellant, v. Town of Colonie, Board of Zoning Appeals, Respondent.

Court of Appeals of the State of New York.

Argued October 16, 1981.

Decided November 17, 1981.

Ronald H. Sinzheimer for appellant.

Susan Marie Tatro, Town Attorney, for respondent.

Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.

*614MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

*615We agree with the court below that petitioner's article 78 proceeding is untimely. (Town Law, § 267, subd 7.) The record does not support petitioner's contention that the respondent Board of Zoning Appeals conducted a rehearing on her application for a variance. In this regard, there is no proof that a majority of the members of the respondent board ever voted on petitioner's request for a rehearing (Town Law, § 267, subd 6) or that a rehearing was held upon the notice required by subdivision 5 of section 267 of the Town Law. Although a letter from respondent's counsel alludes to "rehearings" having been held on petitioner's variance application, this statement, without more, does not establish that a rehearing actually took place. Thus, respondent's determination of March 20, 1979 was final for purposes of article 78, and the time within which to seek review thereof commenced when it was filed with the town clerk on March 21, 1979.

Order affirmed, with costs, in a memorandum.