
    In the Matter of Paul Milstein et al., Respondents, v. John T. O’Neill, as Commissioner of Buildings of the City of New York, et al., Appellants.
    Argued May 28, 1969;
    decided June 4, 1969.
    
      
      J. Lee Rankin, Corporation Counsel (James M. Brachman and Stanley Buchsbaum of counsel), for appellants.
    
      Charles G. Moerdler and Nathan Z. Dershowitz for respondents.
   Memorandum. The order of the Appellate Division should be affirmed, with costs. Petitioners were entitled to the foundation permit for which they had applied simply because the application was never timely rejected upon a valid ground (Administrative Code of City of New York, §§ C26-108.7, C26-118.1). The pending attack by the city on the zoning ordinance variance granted by the Board of Standards and Appeals was irrelevant and until that attack should succeed the Department of Buildings was required to grant the application if otherwise properly supported. It appears, however, that the application for a foundation permit did not satisfy the requirements of the Building Code (Administrative Code, §§ C26-108.2, C26-112.1 et seq., C26-110.2, subd. [a], par. [1], C26-110.2, subd. [b], pars. [1], [7], C26-1100.1 et seq.). But since the application was not rejected for any valid reason, the city may not object at this late date. The physical work ("foundation—exterior walls ”) on the basis of the plans filed with the application may or may not be regarded as a proper foundation for other purposes, such as determining the vesting of rights surviving a change in zoning requirement. However, that issue is not before the court and it, therefore, does not pass on it.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Breitel and Jasen concur.

Order affirmed, with costs, in a memorandum.  