IN RE: TALL TREES CONSTRUCTION CORP. (1999)

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Town of Huntington, dated June 12, 1997, which, after a hearing, took “No Action” on the petitioner's application for an area variance, the petitioner appeals from an interlocutory judgment of the Supreme Court, Suffolk County (Cohalan, J.), which, inter alia, adjudged that the determination was a “nonaction” and remitted the matter to the respondent for a new vote on the petitioner's application in accordance with General Construction Law § 41.

ORDERED that, on the court's own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [b][1];  [c] );  and it is further,

ORDERED that the interlocutory judgment is affirmed, without costs or disbursements.

The Supreme Court properly held, in reliance on this court's decision in Matter of Walt Whitman Game Room v. Zoning Bd. of Appeals of Town of Huntington, 54 A.D.2d 764, 387 N.Y.S.2d 698, that the respondent's determination dated June 12, 1997, was a “nonaction” (see also, Matter of Hoffis v. Zoning Bd. of Appeals of City of Glens Falls, 166 A.D.2d 850, 563 N.Y.S.2d 183).   To the extent that dicta in Matter of Zagoreos v. Conklin, 109 A.D.2d 281, 285, 491 N.Y.S.2d 358, is to the contrary, it should not be followed.   The petitioner's application for costs and disbursements was properly denied (see, Town Law § 267-c[2] ).

We decide no other issue at this juncture.

MEMORANDUM BY THE COURT.