TOWN OF TULLY v. VALLEY REALTY DEVELOPMENT COMPANY INC (1998)

Plaintiff, Town of Tully, appeals from an order that denied without a hearing its motion for a preliminary injunction enjoining defendants from conducting mining operations in the Town and vacated the temporary restraining order previously issued by Supreme Court.

 In an action seeking enforcement of a zoning ordinance, plaintiff is entitled to a preliminary injunction if the record establishes that defendant violated the zoning ordinance;  plaintiff is “not required to meet the three-prong test generally applicable to requests for injunctive relief” (Eggert v. LeFever, 222 A.D.2d 1043, 1044, 635 N.Y.S.2d 857;  see, Vanno v. River Mkt. Commodities, 168 A.D.2d 979, 564 N.Y.S.2d 924).   Where, as here, plaintiff establishes such violation and defendants submit evidence sufficient to raise an issue of fact whether there was a preexisting nonconforming use, “ the court shall make a determination by hearing or otherwise whether each of the elements required for issuance of a preliminary injunction exists” (CPLR 6312[c] ).  Issues of fact exist whether defendants' mining operation is a preexisting nonconforming use and, concomitantly, whether plaintiff is entitled to a preliminary injunction.   In light of the evidence presented by plaintiff, the court erred in summarily denying the motion for a preliminary injunction without holding a hearing (see, CPLR 6312[c];  Independent Health Assn. v. Murray, 233 A.D.2d 883, 884, 649 N.Y.S.2d 616).

 Contrary to defendants' contention, “the Mined Land Reclamation Law does not preempt a municipality's authority, by means of its zoning powers, to regulate or prohibit the use of land within its municipal boundaries for mining operations” (Village of Savona v. Knight Settlement Sand & Gravel, 88 N.Y.2d 897, 899, 646 N.Y.S.2d 655, 669 N.E.2d 813;  see, Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 680-683, 642 N.Y.S.2d 164, 664 N.E.2d 1226).   We also reject defendants' contention that the zoning law is ineffective because a zoning map was not filed with the Secretary of State (see, 1981 Opns. St. Comp. No. 81-24, at 23).

Therefore, we modify the order by vacating the second ordering paragraph and remit this matter to Supreme Court for a hearing on the motion for a preliminary injunction.

Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings.

MEMORANDUM: