Lewis F. Smith et al., Respondents-Appellants, v. Gary J. Palone et al., Appellants-Respondents

Lewis F. Smith et al., Respondents-Appellants, v Gary J. Palone et al., Appellants-Respondents. (Appeal No. 2.) [642 NYS2d 119] [MAJORITY] Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly determined that plaintiffs complied with the requirements of Town Law § 268 and therefore may maintain this action. Further, the court properly determined that this action is not barred by res judicata. The record supports the court’s determination that defendants illegally expanded the operation of Paradise Speedway (the speedway), a pre-existing non-conforming use, when they expanded onto certain other properties and changed the character of the vehicles raced at the speedway to include stock cars. Therefore, the court properly granted plaintiffs a permanent injunction prohibiting that expansion. The scope of the injunction must be modified, however, to permit defendants to use the property in the same manner and to the same extent that it was used in 1975, the effective date of the Town of Phelps Zoning Ordinance. Therefore, we modify the judgment by permitting as a pre-existing non-conforming use the operation of four-cylinder modified vehicles, in addition to go-carts and motorcycles, at racing activities conducted at the speedway. We further modify the judgment by permitting the western portion of the existing speedway located on the so-called "JCG/ Nash” property to continue as a pre-existing non-conforming use. In all other respects, we affirm the judgment. (Appeals from Judgment of Supreme Court, Ontario County, Harvey, J.—Permanent Injunction.) Present—Denman, P. J., Lawton, Wesley, Balio and Davis, JJ.