MATTER OF ESTATE OF CUOMO v. RUSH

ORDERED that the judgment is affirmed, with costs.

The determination of the Zoning Board of Appeals that the petitioner had abandoned its pre-existing nonconforming use of the subject property as a nightclub has a rational basis and is supported by substantial evidence (see, Matter of Fuhst v. Foley, 45 N.Y.2d 441; Human Dev. Servs. of Port Chester v. Zoning Bd. of Appeals of Vil. of Port Chester, 110 A.D.2d 135, affd 67 N.Y.2d 702). The Code of the Town of Southampton provides, in relevant part, that a nonconforming use shall be deemed to have been abandoned "when it has not in fact been actually used for a continuous period of three (3) years" (Code of Town of Southampton § 330-118[A][2]). Contrary to the petitioner's contention, that provision does not mandate a complete cessation of the use in order to constitute an abandonment (cf., Matter of Sadler v. Zoning Bd. of Appeals of Town of Union Vale, 240 A.D.2d 505; Town of Islip v. P.B.S. Marina, 133 A.D.2d 81; Baml Realty v. State of New York, 35 A.D.2d 857). Rather, the phrase "actually used" is qualifying language which specifically equates abandonment with something less than total discontinuance of the nonconforming use (see, Matter of Toys "R" Us v. Silva, 89 N.Y.2d 411).

Here, it is undisputed that the nightclub at issue opened only one night per year from 1993 to 1996 for a four- to six-hour annual holiday party attended by approximately 20 to 40 friends and business acquaintances of Robert Cuomo, the son of the deceased Madeline Cuomo. Moreover, at the hearing before the Zoning Board of Appeals, the attorney for the petitioner admitted that these parties were held for the sole purpose of maintaining the nightclub's status as a nonconforming use. Based on the foregoing, the premises were not "actually used" as a nightclub for a continuous three-year period.