Plymouth Builders, Inc. v. Village of Lindenhurst , 134 N.Y.S.2d 225 ( 1954 )

Appeal from so much of a judgment in favor of respondent as directed the dismissal of the second cause of action, which sought a judgment declaring that respondent’s zoning ordinance was unconstitutional and void insofar as it affected certain lots owned by appellant Plymouth Builders, Inc. Judgment, insofar as appealed from, unanimously affirmed, with costs. The second cause of action was erroneously dismissed on the ground that appellant owner, having purchased the property with knowledge of the zoning restriction, was precluded from questioning the validity thereof. (Vernon Park Realty v. City of Mount Vernon, 282 App. Div. 890, affd. 307 N. Y. 493.) In our opinion, however, the dismissal was proper, as appellants failed to sustain the burden of proving that the zoning ordinance was arbitrary and unconstitutional. (Cf. Rodgers v. Village of Tarrytown, 302 N. Y. 115, 121.) There was proof, through appellants’ own expert witness, that the property in question had substantial value under the use permitted by the variance granted by the board of appeals. While it may have even greater value under an unrestricted business use, that fact alone is not sufficient to warrant a declaration that the zoning ordinance is confiscatory and unconstitutional. (Cf. Shepard v. Village of Skaneateles, 300 N. Y. 115, 120; Ulmer Park Realty Co. v. City of New York, 270 App. Div. 1044, affd. 297 N. Y. 788, and Palmer v. Furman, 283 App. Div. 664.) Present — Nolan, P. J., Adel, MacCrate, Beldoek and Murphy, JJ.