Seitz v. Humenik ( 2000 )

—Proceeding pursuant to CPLR article 78 to review a determination of the respondent Zoning Board of Appeals of the Village of Babylon, dated February 21, 1998, which, after a hearing, determined that the petitioners were not entitled to continue using their residence as a nonconforming multi-family dwelling.

Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.

Contrary to the petitioners’ contentions, the determination of the Zoning Board of Appeals was supported by substantial evidence (see, Matter of Sasso v Osgood, 86 NY2d 374; Matter of Fuhst v Foley, 45 NY2d 441, 444; Conley v Town of Brookhaven Zoning Bd. of Appeals, 40 NY2d 309; Matter of Beirne v Zoning Bd. of Appeals, 267 AD2d 234). The petitioners sought to continue using their residence, which was damaged by fire, as a nonconforming multi-family dwelling. While the petitioners demonstrated that the premises had been configured as two separate apartments with cooking facilities since at least 1954, there was insufficient evidence that the nonconforming use predated the enactment of the Village of Babylon zoning ordinance. Accordingly, the Board properly determined that the petitioners were not entitled to continue using the structure as a nonconforming multi-family dwelling. Friedmann, J. P., McGinity, Luciano and Feuerstein, JJ., concur.