Cohen v. Vecchio , 602 N.Y.S.2d 408 ( 1993 )

Balletta, J.,

dissents, and votes to reverse the order appealed from and to deny the defendants’ motion for summary judgment. I respectfully disagree with my colleagues in the majority. It is well settled that summary judgment is a drastic remedy which will only be granted where there are no material and triable issues of fact (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Issue finding, as opposed to issue determination, is the key to summary judgment (Krupp v Aetna Life & Cas. Co., 103 AD2d 252, 261), and the papers should be scrutinized carefully in a light most favorable to the party opposing the motion (see, Robinson v Strong Mem. Hosp., 98 AD2d 976). The court’s obligation is not to resolve questions of credibility but to determine whether there exists a factual issue or if there is arguably a genuine issue of fact (see, Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341). Applying these principles to the case at hand, I am of the opinion that the plaintiffs have shown, through the submission of the Town’s own studies, that there exists a triable issue of fact as to whether the rezoning of the plaintiffs’ property should be deemed an unconstitutional taking.

The subject premises consist of approximately 1.9 acres located on the northwest corner of the Nesconset/Port Jefferson Highway (Route 347) and Jericho Turnpike in the Town of Smithtown. The parcel is in close proximity to the Smithhaven Mall and the area is heavily commercialized. Indeed, the property immediately adjacent to the subject property to the west is zoned for and improved with an office building, and all the properties to the east, west, and south located along the Nesconset/Port Jefferson Highway are zoned for commercial use. Only the premises directly north of the parcel, and which did not front on the highway, were zoned residential. In 1987, the plaintiffs’ property was rezoned from "WSI” (wholesale and service) to "R-10” (residential) zoning. In the R-10 zone, property could only be used for single-family detached dwellings, on quarter-acre plots, residential community facilities, churches, schools, recreational areas, libraries, municipal buildings and agricultural uses.

A zoning ordinance may be an invalid exercise of a municipality’s police power where "even though reasonably related to a legitimate public purpose, it renders the property affected by it so unsuitable for any purpose for which it is reasonably adapted as effectively to destroy its economic value” (Northern Westchester Professional Park Assocs. v Town of Bedford, 60 NY2d 492, 500). Moreover, while the property owner does bear a heavy burden of showing that no reasonable return may be obtained from the property under the zoning classification, in addition to other "dollars and cents” proof as to the owner’s investment in the property, the court can also consider other factors "such as its topography, the zoning and use of nearby properties * * * traffic on adjoining streets” (Northern Westchester Professional Park Assocs. v Town of Bedford, supra, at 502, 503).

In the instant case, the plaintiffs, in opposition to the defendants’ motion for summary judgment, submitted a copy of a report dated July 21, 1986, from the Town of Smithtown Planning and Community Development Department to the Town Board recommending that "[t]he Town Board should request that [the NY State] Department of Transportation should purchase Sec. 14, Blk. 03, Lot 11 [the subject parcel] insofar as this lot is unbuildable because of its location” (emphasis added). This acknowledgment by the Town’s own planning experts that the premises are unbuildable is sufficient, in my view, to raise a triable issue of fact as to the validity of the residential zoning of the plaintiffs’ property under the circumstances of this case (see, Matter of Grimpel Assocs. v Cohalan, 41 NY2d 431; Stevens v Town of Huntington, 20 NY2d 352; Reuschenberg v Town of Huntington, 143 AD2d 265; Matter of Humble Oil & Ref Co. v Dekdebrun, 38 AD2d 46).