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JOSEPH O'KULA ET AL. v. ROBERT C. MEADE ET AL. (11/03/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT


November 3, 1969

JOSEPH O'KULA ET AL., RESPONDENTS,
v.
ROBERT C. MEADE ET AL., CONSTITUTING THE TOWN BOARD OF THE TOWN OF NORTH HEMPSTEAD, APPELLANTS

In an action for a judgment declaring that the Building Zone Ordinance of the Town of North Hempstead is invalid and unconstitutional as applied to plaintiffs' property and for injunctive relief, the Town Board of the Town of North Hempstead appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Nassau County, entered February 19, 1969 after a non-jury trial, (1) adjudged that the ordinance is unconstitutional as to a portion of plaintiffs' property and (2) awarded costs and disbursements to plaintiffs.

Christ, Acting P. J., Rabin, Hopkins, Benjamin and Martuscello, JJ., concur.

In our opinion, plaintiffs have failed to sustain their burden of proving that the zoning ordinance precludes the use of their subject property for any purpose for which it is reasonably adapted (Levitt v. Incorporated Vil. of Sands Point, 6 N.Y.2d 269; Matter of Setauket Development Corp. v. Romeo, 18 A.D.2d 825; Gardner v. Le Boeuf, 24 Misc. 2d 511, affd. 15 A.D.2d 815; Gregory v. Incorporated Vil. of Garden City, 18 Misc. 2d 478; Fra-Nat Bldrs. v. Town of Oyster Bay, 16 Misc. 2d 851).

Disposition

 Judgment modified, on the law and the facts, by (1) striking out the first decretal paragraph thereof, which adjudged the ordinance unconstitutional; and (2) substituting therefor a provision that the ordinance is not unconstitutional as to plaintiffs' property. As so modified, judgment affirmed insofar as appealed from, without costs.

19691103

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