Roth v. Town of Brookhaven

*642Under the circumstances herein, Special Term was correct in dismissing appellants’ counterclaims insofar as they are asserted against petitioners (see, Ilson v Incorporated Vil. of Ocean Beach, 79 AD2d 697).

However, modification is warranted to the extent indicated in light of our decision in Matter of Roth v Town of Brookhaven (101 AD2d 864), which was handed down after Special Term decided the instant motion and cross motion and which dismissed petitioners-respondents’ claims against respondents-respondents. Appellants, of course, remain free to pursue their article 78 proceeding (index No. 82-15658) to review the subject determination of the Zoning Board of Appeals of the Town of Brookhaven, and their counterclaims and cross claim in the instant proceeding, insofar as they are asserted against respondents-respondents, are severed from the instant proceeding and made a part of that proceeding. Gibbons, J. P., Bracken, O’Connor and Brown, JJ., concur.