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

IN RE: Ilkin UNAL, etc., appellant, v. Gregory P. PETERSON, respondents.

Decided: May 17, 1999

SONDRA MILLER, J.P., CORNELIUS J. O'BRIEN, DAVID S. RITTER and FRED T. SANTUCCI, JJ. Cohn, Rosenthal & Avrutine, P.C., Mineola, N.Y. (William S. Cohn and Richard A. Blumberg of counsel), for appellant. Philip R. Marino, Town Attorney, Hempstead, N.Y. (Thomas McKevitt of counsel), for respondents.

In a proceeding pursuant to CPLR article 78 to review a determination of the Town Board of the Town of Hempstead, dated February 5, 1997, which denied an application for a special exception use permit to convert a building into a convenience store in conjunction with the existing self-service gasoline station, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Bucaria, J.), entered March 19, 1998, which dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

 The reviewing court in a proceeding pursuant to CPLR article 78 will not substitute its judgment for that of the local Town Board unless it clearly appears to be arbitrary, capricious, or contrary to the law (see, Matter of Baker v. Brownlie, 248 A.D.2d 527, 670 N.Y.S.2d 216;  Matter of Tarantino v. Zoning Bd. of Appeals, 228 A.D.2d 511, 644 N.Y.S.2d 296;  Matter of Frisenda v. Zoning Bd. of Appeals of Town of Islip, 215 A.D.2d 479, 626 N.Y.S.2d 263;   Matter of Brucia v. Planning Bd., 157 A.D.2d 657, 549 N.Y.S.2d 757).   In this case, we find that the denial of the petitioner's application was rationally based and, accordingly, the proceeding was properly dismissed (see, Matter of Fuhst v. Foley, 45 N.Y.2d 441, 410 N.Y.S.2d 56, 382 N.E.2d 756;  Matter of Tarantino v. Zoning Bd. of Appeals, supra).

The petitioner's remaining contentions are without merit.


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