Opinion
Filed May 2, 2001.
Appeal from Judgment of Supreme Court, Herkimer County, Kirk, J. — CPLR art 78.
PRESENT: PIGOTT, JR., P.J., PINE, HAYES, KEHOE AND BURNS, JJ.
Judgment unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted the petition to vacate the determination of the Zoning Board of the Town of Webb (Board) denying petitioners' application for an area variance. The Board failed to engage in the requisite balancing test, "considering the factors outlined in [Town Law § 267-b (3) (b)] and weighing the benefit to the applicant[s] against the detriment to the health, safety and welfare of the neighborhood or community" ( Matter of Khan v. Zoning Bd., 87 N.Y.2d 344, 351-352, rearg denied 87 N.Y.2d 1056; see, Matter of Peccoraro v. Humenik, 258 A.D.2d 465; Matter of D'Angelo v. Zoning Bd., 229 A.D.2d 945, lv denied 89 N.Y.2d 803; see generally, Matter of Sasso v. Osgood, 86 N.Y.2d 374, 384). We conclude that the Board's denial of petitioners' application is arbitrary and capricious and is not supported by substantial evidence ( see, Matter of Baker v. Brownlie, 248 A.D.2d 527, 529-530; Matter of D'Angelo v. Zoning Bd., supra). Contrary to the Board's contention, this proceeding is not barred by the doctrine of res judicata. Although petitioners previously applied for an area variance, their prior application was factually distinguishable from their present application ( see, Matter of Peccoraro v. Humenik, supra, at 466). Finally, with respect to the contention of the Board that it was not properly served, the Board waived that contention by raising it in a pleading and then failing to "move for judgment on that ground within sixty days after serving the pleading" (CPLR 3211 [e]).