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MATTER HENRY R. DITTMER v. ARTHUR R. SILSDORF (11/25/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


November 25, 1968

IN THE MATTER OF HENRY R. DITTMER, RESPONDENT,
v.
ARTHUR R. SILSDORF, AS MAYOR OF THE INCORPORATED VILLAGE OF OCEAN BEACH, ET AL., APPELLANTS

In a proceeding pursuant to CPLR article 78 inter aliato compel the issuance of a building permit, the appeal is from a judgment of the Supreme Court, Suffolk County, entered February 15, 1968, which denied appellants' motion to dismiss the petition and remanded the matter to the appellant Board of Appeals for a hearing.

Beldock, P. J., Christ, Rabin, Benjamin and Martuscello, JJ., concur.

Judgment affirmed, with costs. If the facts alleged in the petition be true, petitioner would be entitled to the relief requested (Matter of Mandalay Constr. v. Eccleston, 9 A.D.2d 918; cf. Matter of Bexson v. Board of Zoning & Appeals of Town of Hempstead, 28 A.D.2d 848, 849, affd. 21 N.Y.2d 961; Kilfeather v. Town Bd. of Town of Hempstead, 43 Misc. 2d 328, 330). As indicated by Special Term, the identity or lack of it between the instant application and the prior application cannot be determined on this record. The Board of Appeals may determine that question preliminarily and either (1) close the hearing after stating on the record its findings and conclusions as to the identity of the two applications or (2) proceed to determine the application on its merits (Matter of Shields v. Sahm, 14 Misc. 2d 102, affd. 8 A.D.2d 823).

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