Martino v. Town of Bergen

Dec 16, 1983
Versions:98 A.D.2d 968
470 N.Y.S.2d 242
1983 N.Y. App. Div. LEXIS 21298

— Judgment unanimously affirmed, without costs. Memorandum: In this action seeking a declaratory judgment as to a nonconforming use, plaintiffs appeal from a judgment which dismisses their complaint and grants defendants’ counterclaim enjoining them from using a portion of the premises as an automobile junkyard. The determination of the court following a nonjury trial that plaintiffs did not establish a prior nonconforming use to the portion of their property south of the highway is supported by the evidence. The proof did not demonstrate that the property was actually being used for the nonconforming purpose at the time the zoning ordinance became effective (see Matter of Syracuse Aggregate Corp. v Weise, 51 NY2d 278, 284-285). The court erred, nevertheless, in denying plaintiffs an opportunity to explain their failure to include the parcel in question on certain maps introduced into evidence by defendants and filed with plaintiffs annual applications for junkyard permits for the remainder of their property (see Ferris v Sterling, 214 NY 249). This error is harmless, however, since there is little or no relevance between the nonconforming use of the land on the date the ordinance became effective and plaintiffs’ later permit applications. (Appeal from judgment of Supreme Court, Genesee County, Wolf, J. — declaratory judgment.) Present — Callahan, J. P., Denman, Boomer, O’Donnell and Schnepp, JJ.