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 N.Y.2d 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 A.D.2d 700; Town of N. Hempstead v De Feo, 27 A.D.2d 860).