Opinion
May 20, 1968
In a proceeding under article 78 of the CPLR, the Board of Appeals of the Incorporated Village of Westbury appeals from a judgment of the Supreme Court, Nassau County, dated October 17, 1967, which (1) annulled the board's denial of petitioner's application for an area variance and (2) directed that the variance be granted. Judgment reversed, on the law and in the exercise of discretion, without costs, and matter remitted to the appellant board for a new hearing, at which the proof may be considered in the light of the principles of law enunciated in Matter of Fulling v. Palumbo ( 21 N.Y.2d 30), which was decided on December 7, 1967, subsequent to the decision herein of the learned Special Term. No questions of fact were considered on this appeal. In view of the determination in Fulling ( supra) and in view of the board's request that, if its determination be not sustained by this court, the matter be remitted to it for a new hearing in accordance with the principles of law enunciated in Fulling ( supra), the interests of justice require such remission. Beldock, P.J., Christ, Brennan, Hopkins and Martuscello, JJ., concur.