Opinion
July 8, 1968
MEMORANDUM BY THE COURT. Appeal from a judgment of Special Term annulling a determination of the Board of Zoning Appeals and directing the issuance of a special use permit. As found by Special Term, the record does not contain substantial evidence to support the determination of the board and, accordingly, its refusal to issue the permit was unreasonable and arbitrary. The other contentions of the appellants are without merit. ( Matter of Lemir Realty Corp. v. Larkin, 11 N.Y.2d 20; Matter of Shell Creek Sailing Club v. Board of Zoning Appeals of Town of Hempstead, 20 N.Y.2d 841; Matter of Barry v. O'Connell, 303 N.Y. 46.) Judgment modified to the extent of remitting the matter to respondent Board of Zoning Appeals for the purpose of authorizing the issuance of a special use permit upon proper conditions as the board deems reasonable and necessary (see Matter of Grand Chapter of Phi Sigma Kappa v. Grosberg, 30 A.D.2d 887), and, as so modified, affirmed, with costs. Herlihy, J.P., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by the court.