VITIELLO v. CITY OF YONKERS (2000)

In an action, inter alia, to permanently enjoin the defendant Action Redi-Mix Corp. from operating a concrete plant on certain premises in the defendant City of Yonkers, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Coppola, J.), entered March 10, 1999, which denied their motion for summary judgment on the cause of action for a permanent injunction.

ORDERED that the order is affirmed, with costs.

The defendant Action Redi-Mix Corp. (hereinafter Action Redi-Mix) operates a concrete manufacturing or batching plant.   The plant was built pursuant to a valid building permit, issued after Action Redi-Mix obtained a change of the property's zoning designation.   However, the plant's conformity with the zoning code came into question when the zoning designation change was nullified, and the plant reverted to its former zoning designation.   The plaintiffs, who are residents of a nearby cooperative apartment building, commenced this action, inter alia, to permanently enjoin the operation of the plant.   In the order appealed from, the Supreme Court denied the plaintiffs' motion for summary judgment on that cause of action.   We affirm.   Questions of fact exist as to whether the plaintiffs have suffered special damages, and whether the plant is in violation of the relevant zoning code provisions (see, Matter of Sun-Brite Car Wash v. Board of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 515 N.Y.S.2d 418, 508 N.E.2d 130;  Little Joseph Realty v. Town of Babylon, 41 N.Y.2d 738, 395 N.Y.S.2d 428, 363 N.E.2d 1163;  Williams v. Hertzwig, 251 A.D.2d 655, 675 N.Y.S.2d 113).   Accordingly, the Supreme Court properly denied the appellants' motion for summary judgment.

MEMORANDUM BY THE COURT.