| Specialized Realty Servs., LLC v Town of Tuxedo |
| 2011 NY Slip Op 00373 [80 AD3d 690] |
| January 18, 2011 |
| Appellate Division, Second Department |
| Specialized Realty Services, LLC, Appellant, v Town ofTuxedo et al., Respondents. |
—[*1] Jacobwitz and Gubits, LLP, Walden, N.Y. (Donald G. Nichol and Alyse D. Terhune ofcounsel), for respondents.
In an action for a judgment declaring, inter alia, that certain real property is exempt fromcertain land-use and building code regulations, the plaintiff appeals from a judgment of theSupreme Court, Orange County (Slobod, J.), dated August 4, 2009, which, upon an order of thesame court dated July 14, 2009, inter alia, granting that branch of the defendants' motion whichwas for summary judgment and denying its cross motion for summary judgment on thecomplaint, is in favor of the defendants and against it, in effect, declaring, among other things,that the subject real property is not exempt from the relevant land-use and building coderegulations.
Ordered that the judgment is affirmed, with costs.
The plaintiff owns certain improved real property (hereinafter the property) in the Town ofTuxedo. It commenced this action for a judgment declaring, inter alia, that the property is exemptfrom certain land-use and building code regulations.
The defendants moved, inter alia, for summary judgment, and the plaintiff cross-moved forsummary judgment on the complaint. In an order dated July 14, 2009, the Supreme Court, amongother things, granted that branch of the defendants' motion which was for summary judgment anddenied the plaintiff's cross motion. Thereafter, the Supreme Court entered a judgment which, ineffect, declared, inter alia, that the subject real property is not exempt from the relevant land-useand building code regulations. We affirm.
The Town of Tuxedo Town Code provides that nonconforming nonresidential uses "[s]hallnot be reestablished if such use has been discontinued for one (1) year or more" (Town ofTuxedo Town Code § 98-28 [C] [3]). The defendants established their prima facieentitlement to judgment as a matter of law by demonstrating that the property had been used for anonconforming nonresidential use and that such use had been discontinued for more than oneyear (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In opposition,the plaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]).[*2]
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted that branch of the defendants' motionwhich was for summary judgment, properly denied the plaintiff's cross motion for summaryjudgment on the complaint, and properly entered a judgment declaring, among other things, thatthe subject real property is not exempt from the relevant land-use and building code regulations.Covello, J.P., Eng, Chambers and Hall, JJ., concur.