Opinion
April 24, 1978
In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Zoning Board of Appeals of the Town of Babylon, which granted a special use permit to the intervenor-respondent, petitioners appeal from a judgment of the Supreme Court, Suffolk County, dated September 8, 1977, which dismissed the petition for failure to state a cause of action. Judgment affirmed, without costs or disbursements. It was not necessary for the intervenor to have applied to the zoning board of appeals for a special use permit. Therefore, the board's action in granting the permit need not be reviewed and the petition was properly dismissed (see Matter of De Masco Scrap Iron Metal Corp. v Zirk, 62 A.D.2d 92). Mollen, P.J., Shapiro and Hawkins, JJ., concur; Suozzi, J., dissents and votes to reverse the judgment and grant the petition, in accordance with the views set forth in his dissenting opinion in Matter of De Masco Scrap Iron Metal Corp. v Zirk ( 62 A.D.2d 92).