Opinion
April 14, 1978
Appeal from the Onondaga Supreme Court.
Present — Moule, J.P., Cardamone, Simons, Dillon and Denman, JJ.
Judgment unanimously reversed, without costs, petition reinstated and matter remitted to Onondaga County Supreme Court for a hearing in accordance with the following memorandum: This proceeding was brought pursuant to CPLR article 78, to annul a determination of respondent board of appeals granting a setback variance to corespondent Adams, who is petitioner's neighbor. Special Term dismissed the petition on the ground that the proceeding was not commenced within 30 days after the filing of the board of appeals' decision in the office of the town clerk, as required by subdivision 7 of section 267 Town of the Town Law. This defense is not available to Adams as he is a nonmunicipal respondent (Matter of Hans v Burns, 48 A.D.2d 947). However, respondent town does not raise the issue of timeliness on this appeal and concedes that there should be a hearing on the merits. Accordingly, the proceeding is remitted to Special Term (CPLR 7804, subd [g]) for a hearing to determine the factual questions presented