
    [922 NE2d 881, 895 NYS2d 294]
    In the Matter of Emrey Properties, Inc., Respondent, v Patricia A. Baranello et al., Appellants.
    Decided January 12, 2010
    
      APPEARANCES OF COUNSEL
    
      Sinnreich Kosakoff & Messina, LLP, Central Islip (Vincent J. Messina, Jr., and Timothy F. Hill of counsel), for appellants.
    
      Forchelli, Curto, Deegan, Schwartz, Mineo, Cohn & Terrana, LLP, Uniondale {Andrea Tsoukalas of counsel), for respondent.
   OPINION OF THE COURT

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, with costs, and matter remitted to the Appellate Division, Second Department, for consideration of issues raised but not considered on the appeal to that court. The Zoning Board’s determination, upholding the Planning Board’s denial of a building permit for petitioner to intensify an existing nonconforming use, was not arbitrary, capricious, or contrary to the Town Code {see generally Matter of Pecoraro v Board of Appeals of Town of Hempstead, 2 NY3d 608, 612-613 [2004]).

Concur: Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones.  