IN RE: Jack SAMSONIAN

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Jack SAMSONIAN, et al., petitioners-respondents, v. BOARD OF APPEALS OF the INCORPORATED VILLAGE OF UPPER BROOKVILLE, appellant, Village of Upper Brookville, respondent-respondent.

Decided: May 24, 1999

GUY JAMES MANGANO, P.J., WILLIAM D. FRIEDMANN, LEO F. McGINITY and SANDRA J. FEUERSTEIN, JJ. Humes & Wagner, Locust Valley, N.Y. (Peter M. Weiler and James A. Bradley of counsel), for appellant. Meyer, Suozzi, English & Klein, P.C., Mineola, N.Y. (A. Thomas Levin of counsel), for petitioners-respondents.

In a proceeding pursuant to CPLR article 78 to review a determination of the Board of Appeals of the Incorporated Village of Upper Brookville, entered March 12, 1998, which, inter alia, after a hearing, denied the petitioners' application for an area variance, the Board of Appeals of the Incorporated Village of Upper Brookville appeals (1) from a decision of the Supreme Court, Nassau County (Winick, J.), dated March 12, 1998, and (2), as limited by its brief, from so much of a judgment of the same court entered March 26, 1998, upon the decision, as granted the petition, annulled its determination, and directed it to issue an area variance for a barbecue tower to the petitioners.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that the judgment is affirmed insofar as appealed from;  and it is further,

ORDERED that the petitioners are awarded one bill of costs.

Contrary to the contention of the appellant, Board of Appeals of the Incorporated Village of Upper Brookville, its denial of the petitioners' application for an area variance was without a rational basis and was arbitrary and capricious.   Therefore, the Supreme Court properly annulled the Board's determination and directed that the variance be granted (see, Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384-386, 633 N.Y.S.2d 259, 657 N.E.2d 254;  Matter of Baker v. Brownlie, 248 A.D.2d 527, 670 N.Y.S.2d 216;  Matter of Hampshire Mgt. Co. v. Nadel, 241 A.D.2d 496, 660 N.Y.S.2d 64;  Matter of Frank v. Scheyer, 227 A.D.2d 558, 642 N.Y.S.2d 956).

MEMORANDUM BY THE COURT.

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