Two Wheel Corp. v. Fagiola

— In an action, inter alia, for a judgment declaring that plaintiff may lawfully occupy certain premises as a nonconforming use, plaintiff appeals from an order of the Supreme Court, Nassau County (Young, J.), dated December 11,1981, which denied its motion for summary judgment on its first cause of action. Order affirmed, with costs. As Special Term correctly rúled, summary judgment cannot properly be awarded to the plaintiff on its first cause of action because of the existence of a triable issue of fact, namely, whether the plaintiff’s failure to resume its nonconforming use of the subject premises within the six-month period fixed by subdivision H of section 60-3 of article III of the Code of Ordinances of the Village of Mineóla was caused by unlawful acts of the defendant village taken to frustrate such timely resumption. There is, however, no issue respecting plaintiff’s intent to resume or abandon such use. The very purpose of the code provision is to phase out a nonconforming use regardless of the landowner’s intentions, if any (see Matter of Sun Oil Co. v Board of Zoning Appeals, 57 AD2d 627, affd on mem at App Div 44 NY2d 995; Matter of Hanna v Crossley, 40 AD2d 577, 578; Baml Realty v State of New York, 35 AD2d 857; Lytle Co. v Clark, 491 F2d 834, 837). Gibbons, J. P., O’Connor, Brown and Boyers, JJ., concur.