Decided August 26, 1992 Appeal from (3d Dept: 179 A.D.2d 876) FINALITY OF JUDGMENTS AND ORDERS

As Supreme Court noted, the Town at all times fought plaintiff's application with "unrelenting determination", as it was entitled to do. However, the Town's action in invoking the legal rights of its residents in order to contest plaintiff's application was not the product of malice, oppression, manipulation or corruption (see, Matter of Cleary v Bibbo, 241 A.D.2d 887, 888; Matter of King Rd. Materials v. Garafalo, 173 A.D.2d 931, 932-933; Matter of Magee v. Rocco, 158 A.D.2d 53, 60;Matter of Aversano v. Two Family Use Bd. of Town of Babylon, 117 A.D.2d 665, 667; compare, Matter of Cifone v. Aiello, 179 A.D.2d 876,appeal dismissed 80 N.Y.2d 924). Further, contrary to plaintiff's claim that it was automatically entitled to a special use permit as a matter of right once a trial court declared section 27 to be invalid, the Town retained discretion to evaluate the application and determine whether it should be granted (see, Matter of Twin County Recycling Corp. v. Yevoli, 90 N.Y.2d 1000, 1002).

We conclude that Supreme Court's prior judgment directing issuance of the building permit on the basis of the law as it existed prior to the enactment of the zoning ordinance included the authority to reissue the permit in the circumstances described above. In fact, given the delays attributable to the Town after entry of Supreme Court's judgment in February 1990, delays which prevented Roadway from constructing the building during the 1990 construction season, the "special facts" exception would have been applicable if the Building Inspector had sought to rely on the zoning ordinance to deny Roadway the permit (see, Matter of Cifone v. Aiello, 179 A.D.2d 876, appeal dismissed 80 N.Y.2d 924). We have considered petitioner's other arguments and find them meritless.