Ponte Equities, Inc. v. Chin

—Judgment, Supreme Court, New York County (Robert Lippmann, J.), entered November 16, 2000, which denied the petition and dismissed the proceeding brought pursuant to CPLR article 78 to annul a resolution of respondent Board of Standards and Appeals (BSA), dated March 28, 2000, which modified the certificate of occupancy to remove the right to use the subject premises as a public parking garage while allowing continued use of the subject premises for storage of commercial and public utility vehicles and as a trucking terminal, unanimously affirmed, without costs.

The subject 1961 New York Zoning Resolution, as amended in 1982, was construed by respondent BSA to deem continued operation of a public parking garage in the area where petitioner’s premises are located a distinct nonconforming use. Because BSA’s interpretation of the Zoning Resolution is rational (see, New York City Zoning Resolution § 12-10) it may not be disturbed (see, Matter of New York Botanical Garden v *284Board of Stds. & Appeals, 91 NY2d 413, 418-419). Also not subject to disturbance is BSA’s determination, based on the substantial evidence properly before it, that the nonconforming use of the subject premises as a public parking garage had, subsequent to 1982, been discontinued for a period of two years and, thus, that petitioner, pursuant to Zoning Resolution § 52-61, was no longer entitled to engage in such nonconforming use of the subject premises (see, Matter of Toys “R” Us v Silva, 89 NY2d 411, 417-419, 423-424). Petitioner’s right to utilize the premises in accordance with a 1937 certificate of occupancy was not inalienable but was subject to limitation and/or revision in consequence of the enactment of the aforementioned zoning provisions (see, Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 684), rationally read by the BSA to render continued operation of a public parking garage within the area where the subject premises are located a distinct nonconforming use.

We have considered petitioner’s remaining arguments and find them unavailing. Concur — Rosenberger, J. P., Andrias, Lérner, Saxe and Friedman, JJ.