        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1279
CA 14-00913
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, LINDLEY, AND DEJOSEPH, JJ.


IN THE MATTER OF MICHAEL J. MIMASSI,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TOWN OF WHITESTOWN ZONING BOARD OF APPEALS,
RESPONDENT-RESPONDENT.


DOUGLAS H. ZAMELIS, COOPERSTOWN, FOR PETITIONER-APPELLANT.

WILLIAM P. SCHMITT, TOWN ATTORNEY, UTICA, FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Onondaga County (Anthony J. Paris, J.), entered April 18, 2014 in a
CPLR article 78 proceeding. The judgment denied the petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the petition is granted
in part, the determination is vacated, and the matter is remitted to
respondent for a de novo determination of the application.

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking, inter alia, to annul the determination of respondent denying
his application for an area variance. We reject petitioner’s
contention that the determination was arbitrary and capricious because
respondent failed to adhere to its precedent. Petitioner failed to
establish that respondent’s determination on another application was
based on essentially the same facts as petitioner’s present
application (see Matter of 194 Main, Inc. v Board of Zoning Appeals
for Town of N. Hempstead, 71 AD3d 1028, 1030; see generally Matter of
Tall Trees Constr. Corp. v Zoning Bd. of Appeals of Town of
Huntington, 97 NY2d 86, 93; Knight v Amelkin, 68 NY2d 975, 977).

     We agree with petitioner, however, that Supreme Court erred in
denying the petition. Respondent “was required to weigh the benefit
to [petitioner] of granting the variance[] against any detriment to
the health, safety and welfare of the neighborhood or community
affected thereby, taking into account the five factors set forth in
Town Law § 267-b (3) (b)” (Matter of Conway v Town of Irondequoit
Zoning Bd. of Appeals, 38 AD3d 1279, 1279-1280; see Matter of Pecoraro
v Board of Appeals of Town of Hempstead, 2 NY3d 608, 612-613; Matter
of Ifrah v Utschig, 98 NY2d 304, 307-308). Here, respondent based its
determination upon factors and other criteria relevant to the former
“practical difficulty” test, which is no longer followed, rather than
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                                                        CA 14-00913

on the factors set forth in Town Law § 267-b (3) (b) (see Matter of
Cohen v Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395, 402;
Matter of Sasso v Osgood, 86 NY2d 374, 384). Inasmuch as respondent
failed to engage in the necessary balancing test, we vacate the
determination, and we remit the matter to respondent for a de novo
determination (see Matter of Nye v Zoning Bd. of Appeals of Town of
Grand Is., 81 AD3d 1455, 1456; Matter of Fusco v Russell, 283 AD2d
936, 936). We have considered petitioner’s remaining contentions and
conclude that they are without merit.




Entered:   January 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
