Allmendinger v. Ziegner

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Zoning Board of Appeals of the Town of Babylon,- which granted a special use permit to the intervenor-respondent, petitioners appeal from a judgment of the Supreme Court, Suffolk County, dated September 8, 1977, which dismissed the petition for failure to state a cause of action. Judgment affirmed, without costs or disbursements. It was not necessary for the intervenor to have applied to the zoning board of appeals for a special use permit. Therefore, the board’s action in granting the permit need not be reviewed and the petition was properly dismissed (see Matter of De Masco Scrap Iron & Metal Corp. v Zirk, 62 AD2d 92). Mollen, P. J., Shapiro and Hawkins, JJ., concur; Suozzi, J., dissents and votes to reverse the judgment and grant the petition, in accordance with the views set forth in his dissenting opinion in Matter of De Masco Scrap Iron & Metal Corp. v Zirk (62 AD2d 92).