(concurring, with the following memorandum):
I agree with the conclusion and rationale of the majority in affirming the judgment of the Supreme Court, which annulled the determination of the Planning Board to the extent that it negated the variance granted by the ZBA.
I note, however, that the ZBA had granted the petitioner an extension of time to obtain Planning Board approval until May of 2006. Therefore, at the time that the Supreme Court rendered its determination in April of 2007 (in essence directing the Planning Board to issue approvals for a building permit) the petitioner’s time to satisfy the conditions imposed by the ZBA in granting the variance appears to have expired. The record is silent as to whether the petitioner filed an application for a further extension of time to satisfy the conditions imposed by the ZBA. Moreover, the Planning Board filed a timely appeal from that determination, and in so doing obtained an automatic stay pursuant to CPLR 5519 (a) (1) (see Matter of Lombardi v Habicht, 293 AD2d 476 [2002]). Thus, the Planning Board was temporarily relieved from its obligation to grant the approvals as directed by the Supreme Court. During the pendency of this appeal, the record does not indicate what steps, if any, the petitioner took to obtain further extensions of time in which to obtain the essential Planning Board approval. Additionally, there is no indication in this record that there is any impediment to the petitioner seeking a further extension of time from the ZBA. The petitioner instead apparently relies on the order on appeal as satisfaction of those conditions. If the petitioner had applied or hereinafter applies to the ZBA and if the ZBA was or is so inclined, a further extension could be obtained, or alternatively the ZBA if it so elects, could deny the request for such an extension due to the fact that the scope of the variance had been inadvertently magnified by the Town Board’s alteration of the zoning regulations in question. Since the petitioner may not have obtained an extension from the ZBA or a court, *914its victory herein may be illusory because, by its very terms, the variance granted by the ZBA appears to have expired.
In view of these circumstances, my conclusion that the Supreme Court correctly ruled that the actions of the Planning Board were improper should in no way be construed as conferring greater rights upon the petitioner than have heretofore been granted by the ZBA. In my view, the determination herein cannot be construed as relieving the petitioner from its obligation to seek a further extension of time from the ZBA in which to satisfy the conditions of the ZBA in light of the intervening variance granted and subsequent amendment of the code, pending this appeal. Any contrary result would compel the Planning Board to grant subdivision approval where no variance or right thereto exists at the time of the actual approval.
As indicated by our determination, the issue of the propriety of the variance and extensions of time necessitated by these proceedings is a matter solely within the discretion of the ZBA to decide, as well as whether any further extensions are warranted in view of the pendency of this appeal and the determination rendered herein, and the Planning Board is powerless to, in essence, nullify the actions of the ZBA.