Horan v. Town of Smithtown

194 A.D.2d 714, 601 N.Y.S.2d 803, 1993 N.Y. App. Div. LEXIS 6459

Opinion

—In an action, inter alia, for a judgment (1) declaring the defendant Town of Smithtown’s zoning ordinance unconstitutional insofar as it classifies the petitioner’s parcel of real property as "residential”, (2) compelling the defendants to change the zoning classification of the subject parcel to "heavy industrial”, and (3) for related injunctive relief, the defendants appeal from an order of the Supreme Court, Suffolk County (Floyd, J.), dated April 5, 1991, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, without costs or disbursements.

We concur with the trial court that triable issues of fact exist which preclude the granting of the defendants’ motion for summary judgment (see, Creighton v Milbauer, 191 AD2d 162). Thompson, J. P., Bracken, Balletta and Eiber, JJ., concur.