Hays v. Walrath, 271 A.D.2d 744 (N.Y. App. Div. 2000). · Go Syfert
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Hays v. Walrath, 271 A.D.2d 744 (N.Y. App. Div. 2000). Cases Citing This Book View Copy Cite
8 citation events (8 in the last 25 years) across 1 distinct court.
Strongest positive: East Lake George House Marina v. Lake George Park Commission (nyappdiv, 2010-01-14)
Top citers, strongest first. 6 distinct citers. How cited ↗
discussed Cited as authority (rule) East Lake George House Marina v. Lake George Park Commission
N.Y. App. Div. · 2010 · confidence medium
Inasmuch as petitioner failed to challenge respondent’s determination at the available administrative hearing, it did not exhaust its administrative remedies, and the doctrine requiring that such remedies be exhausted precludes the present challenge to respondent’s determination in the courts (see Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]; Young Men’s Christian Assn. v Rochester Pure Waters Dist. 37 NY2d 371, 375 [1975]; Matter of Purr Fect World, Inc. v City of Cortland, 57 AD3d 1254, 1255 [2008]; Matter of Hays v Walrath, 271 AD2d 744, 745 [2000]).
discussed Cited as authority (rule) Town of Caroga v. Herms
N.Y. App. Div. · 2009 · confidence medium
On appeal, we held that the petitioners had failed to exhaust their administrative remedies, thus the proceeding should have been dismissed without reaching the merits (Matter of Hays v Walrath, 271 AD2d 744, 745 [2000]).
discussed Cited as authority (rule) Purr Fect World, Inc. v. City of Cortland
N.Y. App. Div. · 2008 · confidence medium
Accordingly, as petitioner failed to exhaust the administrative remedies offered under the City of Cortland Zoning Ordinance, it is foreclosed from raising these issues before this Court (see Matter of Hays v Walrath, 271 AD2d 744, 745 [2000]; Matter of Parisella v Zoning Bd. of Appeals of Town of Fishkill, 188 AD2d 712, 713 [1992], lv denied 82 NY2d 653 [1993]).
cited Cited as authority (rule) Letourneau v. Town of Berne
N.Y. App. Div. · 2008 · confidence medium
Based upon petitioner’s failure to pursue this administrative remedy, she is foreclosed from raising such a challenge in court (see Matter of Hays v Walrath, 271 AD2d 744, 745 [2000]).
discussed Cited as authority (rule) Camardo v. Michelman
N.Y. App. Div. · 2004 · confidence medium
The petition must be dismissed because petitioner failed to exhaust his administrative remedies (see Matter of Hays v Walrath, 271 AD2d 744, 745 [2000]; Matter of Parisella v Zoning Bd. of Appeals of Town of Fishkill, 188 AD2d 712, 713 [1992], lv denied 82 NY2d 653 [1993]).
discussed Cited "see, e.g." C L & F Development, LLC v. Weiss
N.Y. App. Div. · 2008 · signal: see also · confidence medium
We agree with respondents, as asserted in their second affirmative defense, that the petition must be dismissed because petitioner failed to exhaust its administrative remedies (see Matter of Camardo v Michelman, 12 AD3d 1176 [2004]; see also Matter of Hays v Walrath, 271 AD2d 744, 745 [2000]; cf. Matter of Social Spirits v Town of Colonie, 74 AD2d 933 [1980]).
Retrieving the full opinion text from the archive…
In the Matter of Nancy E. Hays
v.
Donald Walrath, as Code Enforcement Officer of the Town of Caroga
Appellate Division of the Supreme Court of the State of New York.
Apr 6, 2000.
271 A.D.2d 744
2000 N.Y. App. Div. LEXIS 3910
Spain.
Cited by 7 opinions  |  Published
Spain, J.

Appeal from a judgment of the Supreme Court (Sise, J.), entered October 1, 1999 in Fulton County, which dismissed petitioners’ application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Code Enforcement Officer issuing a building permit to respondents Joseph Herms and Theresa Herms.

Respondents Joseph Herms and Theresa Herms own a parcel of lakefront property on Canada Lake in the Town of Caroga, Fulton County. They twice unsuccessfully applied to the Town Zoning Board of Appeals (hereinafter the ZBA) for a variance to build a residence on the parcel. While a third variance application was pending — which was ultimately denied — the Hermses began building a two-story boathouse at the shoreline of their property without a permit. Respondent Donald Walrath, the Town’s Code Enforcement Officer, initially issued a stop work order believing the construction to be in violation of the Town of Caroga Zoning Ordinance. However, on July 19, 1999, Walrath issued the Hermses a building permit to resume the construction of the boathouse.

Petitioners, owners of property located approximately one-half mile across the lake from the Hermses’ property, com[*745] menced this CPLR article 78 proceeding seeking review of Walrath’s issuance of the building permit. Supreme Court sustained the issuance of the permit and dismissed the petition on the merits. Petitioners appeal.

Petitioners questioned the legality of Walrath’s issuance of the July 19, 1999 building permit in a July 29, 1999 letter to the ZBA which essentially urged the ZBA to deny the Hermses’ third application for a variance. However, petitioners never appealed to the ZBA from Walrath’s decision to issue the building permit or his refusal to revoke that permit or to issue another stop work order.

The Town of Caroga Zoning Ordinance § 12.010 provides, in relevant part, that: “The Building Inspector shall have the power and duty to administer and enforce the provisions of this ordinance. * * * The appeal from an action, omission, decision or rule by him regarding a requirement of the ordinance may be made only to the Zoning Board of Appeals.” Petitioners’ failure to seek administrative review by the ZBA “with respect to the Building Inspector’s issuance of the challenged building permit forecloses their ability to raise that issue before this Court” (Matter of Parisella v Zoning Bd. of Appeals, 188 AD2d 712, 713, lv denied 82 NY2d 653; see, Matter of Jonas v Town of Colonie, 110 AD2d 945, 946; see also, Engert v Phillips, 150 AD2d 752, 753-754; 2 Salkin, New York Zoning Law and Practice § 33.22, at 33-47 [4th ed]).

Petitioners’ having failed to exhaust their administrative remedies, we conclude that Supreme Court properly dismissed the petition, although for reasons other than those relied upon by Supreme Court.

Mercure, J. P., Crew III, Carpinello and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.