Matter of DeVito v Zoning Bd. of Appeals of City of Poughkeepsie

Matter of DeVito v Zoning Bd. of Appeals of City of Poughkeepsie 2009 NY Slip Op 09221 [68 AD3d 861] December 8, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

In the Matter of Carissa DeVito, Appellant,
v
Zoning Board of Appeals of City of Poughkeepsie, Respondent.

—[*1] Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, N.Y. (Karen E. Hagstrom of counsel), for appellant.

G. Brian Morgan, Corporation Counsel, Poughkeepsie, N.Y. (Lynn M. DiCerbo of counsel), for respondent.

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent dated August 30, 2007, finding that the petitioner was conducting a fuel oil delivery business at her residence in violation of the Code of the City of Poughkeepsie § 19-3.13 (2), the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Sproat, J.), dated September 9, 2008, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

Contrary to the petitioner's contention, the respondent's determination was not arbitrary and capricious (see generally Matter of Sasso v Osgood, 86 NY2d 374, 385 [1995]; Matter of Halperin v City of New Rochelle, 24 AD3d 768, 772 [2005]). There was ample evidence in the record to support the respondent's conclusion that the fuel oil delivery business owned by the petitioner had been extended unlawfully to her nearby residential premises, and that the use of an oil delivery truck at those premises in conjunction with the neighboring commercial enterprise constituted an unauthorized business use of the property under the Code of the City of Poughkeepsie § 19-3.13 (2) (see generally City of Yonkers v Rentways, Inc., 304 NY 499, 503 [1952]). Accordingly, the Supreme Court properly denied the petition and dismissed the proceeding. Mastro, J.P., Belen, Hall and Austin, JJ., concur.