Opinion
April 29, 1996
Appeal from the Supreme Court, Nassau County (Roncallo, J.).
Ordered that order is affirmed, insofar as appealed from, with costs.
The intervenors sought to remodel and add to their restaurant and bar, which is located in a residential neighborhood. The use of the property is a pre-existing non-conforming use. Contrary to the intervenors' contention, the recitation by their attorney at the hearing of the costs of operating the restaurant and bar, without any evidence of how those costs affect their return, is not sufficient to establish an unnecessary hardship ( Matter of Village Bd. v. Jarrold, 53 N.Y.2d 254, 260; see also, Matter of Board of Commrs. v. Board of Zoning Appeals, 188 A.D.2d 464). Thus, as the Supreme Court found, the determination of the Zoning Board of Appeals is arbitrary and capricious ( see, CPLR 7803).
The intervenors' remaining contentions are either unpreserved for appellate review or without merit. Rosenblatt, J.P., Miller, O'Brien and McGinity, JJ., concur.