Frantellizzi v. Herman 1 A.D.2d 980

Proceeding under article 78 of the Civil Practice Act to review a determination made by respondents denying appellants’ application for permission to erect a soft ice cream sales stand on their property. Such use is permitted under the town zoning ordinance only when authorized by the town board as a special exception. The appeal is from an order dismissing the petition as insufficient, on respondents’ cross motion, on the ground that it seeks to review a legislative act and that such an act may not be reviewed in a proceeding under article 78. Order reversed, with $10 costs and disbursements, and cross motion denied, with leave to respondents to serve an answer to the petition within 20 days after the entry of the order hereon. Respondents’ determination upon the application for a special exception involves an exercise of judgment or discretion (Civ. Prac. Act, § 1284) and is reviewahle in a proceeding under article 78. (Matter of Lerner v. Young, 286 App. Div. 1109, motion for leave to appeal to the Court of Appeals denied 1 A D 2d 776; Green Point Sav. Bank v. Zoning Appeals Bd., 281 N. Y. 534.) Whether or not the action of the board was arbitrary or reasonable, and whether or not the ordinance is constitutional in its application to appellants’ property, are issues which, in view of the allegations of the petition, should be determined after a hearing upon the facts. Nolan, P. J., Beldock, Ughetta, Hallinan and Kleinfeld, JJ., concur.