
    James Wemett, Appellant, v Zoning Board of Appeals of the City of Rochester, Respondent.
   — Judgment unanimously reversed on the law without costs and petition granted. Memorandum: In spite of the evidence presented by petitioner in affidavits from several former and present occupants of petitioner’s building that the building had continuously been used and occupied for six apartments, the Zoning Board determined that the building had been used and occupied for two apartments. It further determined that any prior use of the building for six apartments was abandoned when the former owner applied for and received a certificate of occupancy for two apartments. Thus, the Zoning Board determined that petitioner was not entitled to a certificate confirming a prior nonconforming use of the building , for six apartments.

The Board erred in determining that any use of the building for six apartments was abandoned when the former owner applied for a certificate of occupancy for only two apartments. The misstatement of facts in the certificate of occupancy is not sufficient to constitute an abandonment of the nonconforming use (see, Turetsky v City of Long Beach, 19 AD2d 902). In view of all of the evidence before the Zoning Board, its determination that the premises was not continuously used as a six-apartment dwelling was arbitrary and capricious and was not based on substantial evidence. (Appeal from Judgment of Supreme Court, Monroe County, Galloway, J. — Article 78.) Present — Callahan, J. P., Boomer, Green, Pine and Balio, JJ.  