In the Matter of Nedles Land Corp. et al., Appellants, v. Town of Brookhaven, Respondent, 20 A.D.2d 648

In a proceeding pursuant to

article 78 of the former Civil Practice Act, to annul a determination of the respondent Town Board of the Town of Brookhaven, made November 28, 1961, revoking a zoning variance which it had previously granted in 1955 to petitioners’ predecessor in title upon an application made pursuant to

section 1711-c of the local zoning ordinance, petitioners appeal from an order of the Supreme Court, Suffolk County, entered March 29, 1962, granting the town’s motion to dismiss the petition for patent insufficiency. Order reversed on the law and the facts and motion denied, with costs to abide the determination upon remission; and matter remitted to the Special Term for further proceedings not inconsistent herewith, with leave to the board to serve an answer and a certified transcript of the record of the 1961 revocation proceedings, within 20 days after entry of the order hereon (CPLR 7804, subds. [e], [f]).

The learned Special Term held that the board’s action in revoking the 1955 variance constituted a legislative act, immune as such from judicial review in an

article 78 proceeding. In our opinion since, on a motion such as the instant one, the petition’s well-pleaded factual allegations must be deemed true, the petition sufficiently tendered triable issues of fact (cf. Matter of Glen Truck Sales & Serv. v. Sirignano, 31 Misc 2d 1027, 1028; Matter of Hassett v. Barnes, 11 A D 2d 1089). When such issues of fact are resolved, the issues of law: (

a) as to whether the board’s revocation was a reviewable act; and (

b) as to whether the revocation was legislative or administrative in character will become determinable. Without the board’s answer and transcript of the revocation proceedings, and without a determination of the issues of fact, any determination of the issues of law made solely on the basis of the petition is necessarily premature (cf. Matter of Teplitsky v. City of New York, 283 App. Div. 882, 883). Kleinfeld, Acting P. J., Christ’, Hill, Rabin and Hopkins, JJ., concur.