Town of Somerset v. Perry

—Judgment unanimously reversed, on the law, without costs, and application granted, in accordance with the following memorandum: Respondents’ conversion of their property from a bargain store to a diner constituted a change of a nonconforming use under the town’s zoning ordinance for which a variance was required (Matter of Off Shore Rest. Corp. v Linden, 30 NY2d 160 ). In granting the variance the town’s requirement that respondents obtain a use variance with conditions was warranted. The record indicates that two conditions imposed by the town were violated. Moreover, since respondents failed to timely file a CPLR article 78 proceeding to challenge the conditions contained in the variance, they are foreclosed from challenging them on appeal (see, Matter of Wolfram v Abbey, 55 AD2d 700 ; Town of N. Hempstead v De Feo, 27 AD2d 860 ). (Appeal from judgment of Supreme Court, Niagara County, Sedita, J.—permanent injunction.) Present— Dillon, P. J., Denman, Boomer, Green and O’Donnell, JJ.