Town of Lockport, Respondent, v. Richard L. Cornelius et al., Appellants

Town of Lockport, Respondent, v Richard L. Cornelius et al., Appellants. [MAJORITY] — Judgment unanimously reversed, with costs, and motion denied. Memorandum: Plaintiff was granted summary judgment in an action for a permanent injunction to enjoin defendants from operating a junkyard on their property. Summary judgment is a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues of fact (Andre v Pomeroy, 35 NY2d 361). Examining the affidavits in a light most favorable to defendants (Rotuba Extruders v Ceppos, 46 NY2d 223, 231), we believe a material question of fact exists as to whether defendants’ use of their property is a prior nonconforming use. A judgment of acquittal in a criminal action against defendant Richard Cornelius for violation of the Lockport zoning ordinance and the Justice’s notes which summarize the witnesses’ testimony are annexed to defendants’ affidavit in opposition to the motion for summary judgment. The Justice’s notes explicitly state, “Valid pre-existing use since 1945 and continuous since then.” Defendants should be given an opportunity to offer proof at trial on this issue. We have examined defendants’ other contention and find it to be without merit. (Appeal from judgment of Supreme Court, Niagara County, Di Florio, J. — permanent injunction.) Present — Dillon, P. J., Hancock, Jr., Doerr, Boomer and Moule, JJ.