Fusco v. Russell

—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. of Appeals, 87 NY2d 344, 351-352, rearg denied 87 NY2d 1056; see, Matter of Peccoraro v Humenik, 258 AD2d 465; Matter of D’Angelo v Zoning Bd., 229 AD2d 945, lv denied 89 NY2d 803; see generally, Matter of Sasso v Osgood, 86 NY2d 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 AD2d 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 937 in a pleading and then failing to “move for judgment on that ground within sixty days after serving the pleading” (CPLR 3211 [e]). (Appeal from Judgment of Supreme Court, Herkimer County, Kirk, J. — CPLR art 78.) Present — Pigott, Jr., P. J., Pine, Hayes, Kehoe and Burns, JJ.