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MTR OF 9TH & 10TH ST v. BOARD

10 N.Y.3d 264 (2008)

885 N.E.2d 881

856 N.Y.S.2d 28

In the Matter of 9TH & 10TH STREET L.L.C., Appellant, v. BOARD OF STANDARDS AND APPEALS OF THE CITY OF NEW YORK, Appellant.

Court of Appeals of the State of New York.

Decided March 25, 2008.

Attorney(s) appearing for the Case

Michael A. Cardozo, Corporation Counsel, New York City (Stephen J. McGrath, Virginia Waters and Cheryl Payer of counsel), for appellant.

Anderson Kill & Olick, P.C., New York City (Steven Cooper, Jeffrey E. Glen and Gail M. Eckstein of counsel), for respondent.

Katie Kendall, New York City, Vicki Been and Michael Gruen for Municipal Art Society of New York, Inc., amicus curiae.

The Plunkett & Jaffe Group of McKenna Long & Aldridge LLP, New York City (William F. Plunkett Jr., Charles E. Dorkey III and Timothy J. Plunkett of counsel), for Defenders of the Historic Upper East Side and others, amici curiae.

Stroock & Stroock & Lavan LLP, New York City (Ross F. Moskowitz and Claude G. Szyfer of counsel), for Real Estate Board of New York, Inc., amicus curiae.

Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, PIGOTT and JONES concur.

OPINION OF THE COURT

SMITH, J.

Petitioner sought a building permit to construct a dormitory. The New York City Department of Buildings denied the permit on the ground that petitioner had not shown it could actually use the building as a dormitory, and that if it did not do so the result would be either an illegal use or a vacant building. We hold that the Department's action was not arbitrary and capricious. Where there is reason to doubt that a proposed...

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