Puzio v. City of Yonkers ( 1975 )

—In a proceeding to obtain a declaration that the residential zoning ordinance of defendant City of Yonkers as it applies to plaintiffs’ property is invalid, etc., plaintiffs appeal from an order of the Supreme Court, Westchester County, dated August 26, 1974, which, inter alla, denied their motion for summary judgment. Order modified (1) by deleting from the last decretal paragraph thereof the words "preserved for trial by the decision of Hon. George D. Burchell dated August 14, 1974 and upon which this order is made” and (2) by inserting in the same paragraph, immediately before the words "the issues”, the word "all” and, immediately after the words "the issues”, the words "other than those indicated by the above-mentioned established facts”. As so modified, order affirmed, without costs. While Special Term properly denied plaintiffs’ motion for summary judgment, it should not have limited the issues preserved for trial so as to deny pláintiffs the opportunity to prove that the present residential zoning of their property violates defendant’s comprehensive plan (Udell v Haas, 21 NY2d 463). Rabin, Acting P. J., Hopkins, Brennan, Munder and Shapiro, JJ., concur.