*958Rabin, P. J., Latham and Christ, JJ., concur; Munder and Brennan, JJ., concur in reversal of the order insofar as appealed from (striking out the first decretal paragraph of the order), but otherwise dissent and vote to grant appellant’s cross motion to dismiss the petition as to it, with the following memorandum: The refusal of the Board of Zoning Appeals to waive the jurisdictional requirement that petitioner submit a disclosure affidavit of the mortgagee (see Code of Town of Smithtown, § 54r-14 B [1]) was not arbitrary, as there is no provision in the Code authorizing such waiver. Accordingly, the petition failed to state pertinent and material facts (CPLR 7804, subd. [d]) upon which the relief sought could be granted.