Ordered that the judgment is affirmed, with costs.
At a hearing before the Supreme Court, the respondents amply demonstrated that the unimproved portion of a partially dedicated street, Oakcrest Drive, was inaccessible to emergency vehicles because the slope of the right-of-way was steep, with grades ranging from 11.5% to 18.5%, and the right-of-way was inundated by brush and trees. As a result, the Supreme Court properly determined that the respondents' decision to deny the petitioners' requested variance was supported by the evidence and was not arbitrary or capricious (see, Matter of Lund v. Town Bd., 162 A.D.2d 798, 800).
While the petitioners' evidence did demonstrate that the unimproved portion of Oakcrest Drive or the right-of-way thereon could be regraded to provide access to emergency vehicles, the petitioners failed to establish any clear right to excavate on the privately owned portion of Oakcrest Drive or on the right-of-way shared in common with others (see, Matter of Newman v. Parker, 174 A.D.2d 783, 784; Novak v. Planning Bd., 136 A.D.2d 610, 611; Goldstein v. Zoning Bd. of Appeals, 78 A.D.2d 538, 539). As a result, the Supreme Court properly declined to annul the determination and remit the matter to the respondents for the issuance of a variance subject to reasonable conditions (see, Matter of Kidd-Kott Constr. Co. v. Lillis, 124 A.D.2d 996, 997; Matter of North Shore Hebrew Academy v. Wegman, 105 A.D.2d 702, 707).
We have considered the petitioners' remaining contentions and find them to be without merit. Pizzuto, J.P., Santucci, Hart and Goldstein, JJ., concur.