
    In the Matter of Sam Gershowitz, Appellant, v Planning Board of the Town of Brookhaven et al., Respondents. Sam Gershowitz, Appellant, v Town of Brookhaven et al., Respondents.
    Argued November 17, 1980;
    decided December 18, 1980
    
      APPEARANCES OF COUNSEL
    
      Oscar J. Bloom and Christopher Steele for appellant.
    
      Martin J. Kerins, Town Attorney (David P. Fishbein of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed, with costs, and the judgment of Special Term reinstated.

The Brookhaven Zoning Board of Appeals, having issued petitioner a special use permit to operate an automobile shredder plant, determined that petitioner’s proposed use was in compliance with the Brookhaven Town Code. The use being so approved, the Brookhaven Planning Board was without power to disapprove petitioner’s site plan on the ground that petitioner’s use violated the Brookhaven Town Code. (See Brookhaven Town Code, § 85-160A; 2 Rathkopf, Law of Zoning and Planning [4th ed], § 30.04.) Thus, we agree with the Appellate Division that the planning board’s disapproval of petitioner’s site plan was a nullity.

We cannot, however, accept the Appellate Division’s determination that the issuance of petitioner’s special use permit by the Brookhaven Zoning Board of Appeals was beyond the board’s legislative authority. The issuance of petitioner’s special use permit was never challenged in an appropriate proceeding (see Town Law, § 267, subd 7) and was not before the Appellate Division in this case. In fact, the only matter before the court was the disapproval of petitioner’s site plan by the Brookhaven Planning Board. Inasmuch as no proceeding was ever brought to challenge the issuance of petitioner’s special use permit, the proposed use of the automobile shredder was rendered unassailable. Thus, the question whether issuance of the special use permit was authorized should not have been addressed by the Appellate Division as that determination was not before the court for review.

Chief Judge Cooke and Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur; Judges Jones and Meyer dissent and vote to affirm in the following memorandum : We agree with the analysis and disposition at the Appellate Division and would accordingly give effect to the stipulation of judgment absolute.

Order reversed, with costs, and the judgment of Supreme Court, Suffolk County, reinstated in a memorandum.  