Parkway Woods, Inc. v. Petco Enterprises, Inc., 68 N.Y.2d 658 (1986)
A challenge to a petitioner’s standing in an Article 78 proceeding is waived if not raised in the responsive pleading or by pre-answer motion, and a nonconforming use is deemed abandoned when discontinued or not used for a specified period, regardless of the owner’s intent or lease agreements.
Summary
Parkway Woods, Inc. initiated an Article 78 proceeding to challenge the zoning board’s grant of a certificate of existing use to S.F. Shopping Center, Inc. for a gasoline service station. S.F. Shopping Center, Inc. failed to raise the issue of Parkway Woods, Inc.’s standing in its initial answer. The court held that the failure to raise the standing issue in the initial pleading constituted a waiver of that defense. Furthermore, the court determined that the zoning board’s finding that the nonconforming use (gas station) had not been abandoned was not supported by substantial evidence, as the property had not been used as a gas station for over a year.
Facts
Petco Enterprises, Inc. operated a gasoline service station.
S.F. Shopping Center, Inc. sought a certificate of existing use for the gasoline service station.
The gasoline pumps had been removed from the premises.
The building on the premises was used as a tobacco shop for more than a year before becoming vacant.
Parkway Woods, Inc. initiated an Article 78 proceeding to review the zoning board’s determination.
Procedural History
Parkway Woods, Inc. commenced an Article 78 proceeding to review the zoning board’s determination.
S.F. Shopping Center, Inc. interposed its answer without asserting the petitioner’s lack of standing.
The Zoning Board of Appeals filed an amended answer, also without raising a standing objection.
The Appellate Division’s order was appealed to the New York Court of Appeals.
Issue(s)
Whether S.F. Shopping Center, Inc. waived its right to challenge Parkway Woods, Inc.’s standing by failing to raise the issue in its initial responsive pleading.
Whether the zoning board’s determination that the nonconforming use had not been abandoned was supported by substantial evidence.
Holding
Yes, because CPLR 3211(e) provides that the defense of lack of standing is waived if not raised by motion or in the responsive pleading.
No, because the property was not used as a gasoline service station for more than one year, and the ordinance states that such non-use constitutes abandonment, regardless of the owner’s intent.
Court’s Reasoning
The court relied on CPLR 3211(e), which explicitly states that a defense based on lack of standing is waived if not raised in the responsive pleading or by motion. Because S.F. Shopping Center, Inc. failed to raise the issue in its initial answer, it waived the defense.
The court also analyzed the Brookhaven ordinance, which states that a nonconforming use is abandoned if “discontinued, abandoned or not used for a period of one (1) year or more.” The court noted that the respondents conceded that the gasoline pumps had been removed and the building was used as a tobacco shop for over a year. The court reasoned that the owner’s intent, lease agreements, and presence of underground storage tanks were insufficient to demonstrate continued use as a gasoline service station. Therefore, the zoning board’s decision lacked substantial evidence. The court cited 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 in support of the principle that administrative decisions must be based on substantial evidence.