MATTER OF WHEELER v. City of Elmira

63 N.Y.2d 721 (1984)

In the Matter of Stewart R. Wheeler, Appellant, v. City of Elmira et al., Respondents, and Esther Gladke et al., Intervenors-Respondents.

Court of Appeals of the State of New York.

Decided September 11, 1984.

Thomas W. Farstad for appellant.

Gerald E. DeFilippo, Corporation Counsel (Steven W. Forrest of counsel), for respondent.

Samuel J. Castellino for intervenor-respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.

*723MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs, for the reasons stated in its memorandum. We add that petitioner's papers: (1) do not reveal what the rental for the second floor apartment is; (2) seek to establish the maximum potential rental for a first floor apartment, if conversion is permitted, through the affidavit of an attorney which does not establish his status as an expert on real estate valuation; (3) fail to recognize that, because one- and two-family residences are permitted uses in a residential "A" district, conversion of the first floor to one apartment would require only a setback or area variance, not a use variance; and (4) do not establish that more than one apartment (which would require a use variance but would also increase the income) cannot be created in the 2,650 square feet of the first floor.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.