
    In the Matter of Demisay, Inc., Respondent, v. Michael N. Petito et al., Constituting the Town Board of the Town of Oyster Bay, Appellants.
    Argued November 29, 1972;
    decided December 28, 1972.
    
      
      Bernard F. McCaffrey, Town Attorney (David J. Weinblatt and Robert A. Shuster of counsel), for appellants.
    
      Jerome Murray for respondent.
   Order reversed, without costs, and the petition dismissed in the following memorandum: Since the Appellate Division determination, the town has amended its zoning ordinance to exclude nursing homes entirely from the residential zone in which petitioner’s property is located. The court is constrained, therefore, to decide the case on the law at the time of decision (e.g., Matter of Gordon v. Plonski, 9 N Y 2d 886; Matter of Town Bd. of Huntington v. Plonski, 13 A D 2d 704, affd. 10 N Y 2d 1035; Matter of Lunden v. Petito, 30 A D 2d 820). This determination, however, is without passing on and without prejudice to the constitutional issue raised on argument by petitioner, there being no basis in the record made before the change in law took place.

Concur: Chief. Judge Fuld and Judges Burk;?, ScruEPPi, Bergan, Breitel, Jasen and Gibson.  