Lakeville Merrick Corp. v. Town Board

In an action to declare void an amendment to a local zoning ordinance, the defendants, the Town of Islip and its Town Board, appeal from so much of an order of the Supreme Court, Suffolk County, dated May 3, 1963, as granted plaintiffs’ motion to examine the defendants before trial and directed them to submit to such examination upon the following three items: “ (a) Studies, investigations and planning made by or in behalf of the defendants prior to the enactment of the amendment to the Zoning Ordinance on October 2, 1962. (b) The use or lack of use of industrial property zoned ‘ Industrial I ’ (erroneously referred to in the order as 1 Industrial X ’) in the Town of Islip prior to October 2, 1962. (c) The suitability of plaintiffs’ property for industrial purposes on October 2, 1962.” Order modified by striking out items (b) and (e) from its second ordering paragraph. As so modified, the order, insofar as appealed from, is affirmed, without costs. The examination shall proceed on 10 days’ written notice by plaintiff to defendants, or at such other time as the parties 585 by written stipulation may mutually agree. In our opinion, the complaint reveals that, as to the use of industrial property in the Town of Islip prior to October 2, 1962, any information which the plaintiffs require has been or can be readily ascertained by independent means (cf. Reformed Church of Mile Sq. v. City of Yonkers, 8 A D 2d 639; see Rios v. Donovan, 21 A D 2d 409, 413). With respect to the suitability of the plaintiffs’ property for industrial purposes on October 2, 1962, that is a conclusion of fact or law and an argumentative matter as to which examination before trial is not permitted (Milbeck Apts. v. Corby Assoc., 285 App. Div. 83; Rausch v. Mon-fort, 251 App. Div. 868; Nammel Sta. Estates v. City of New York, 184 Mise. 859, 861). Beldoek, P. J., Ughetta, Christ, Brennan and Benjamin, JJ., concur.