Town of Tully v. Valley Realty Development Co.

Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Plaintiff, Town of Tully, appeals from an order that denied without a hearing its motion for a preliminary injunction enjoining defendants from conducting mining operations in the Town and vacated the temporary restraining order previously issued by Supreme Court.

In an action seeking enforcement of a zoning ordinance, plaintiff is entitled to a preliminary injunction if the record *836establishes that defendant violated the zoning ordinance; plaintiff is "not required to meet the three-prong test generally applicable to requests for injunctive relief’ (Eggert v LeFever, 222 AD2d 1043, 1044; see, Vanno v River Mkt. Commodities, 168 AD2d 979). Where, as here, plaintiff establishes such violation and defendants submit evidence sufficient to raise an issue of fact whether there was a preexisting nonconforming use, "the court shall make a determination by hearing or otherwise whether each of the elements required for issuance of a preliminary injunction exists” (CPLR 6312 [c]). Issues of fact exist whether defendants’ mining operation is a preexisting nonconforming use and, concomitantly, whether plaintiff is entitled to a preliminary injunction. In light of the evidence presented by plaintiff, the court erred in summarily denying the motion for a preliminary injunction without holding a hearing (see, CPLR 6312 [c]; Independent Health Assn. v Murray, 233 AD2d 883, 884).

Contrary to defendants’ contention, “the Mined Land Reclamation Law does not preempt a municipality’s authority, by means of its zoning powers, to regulate or prohibit the use of land within its municipal boundaries for mining operations” (Village of Savona v Knight Settlement Sand & Gravel, 88 NY2d 897, 899; see, Matter of Gernatt Asphalt Prods v Town of Sardinia, 87 NY2d 668, 680-683). We also reject defendants’ contention that the zoning law is ineffective because a zoning map was not filed with the Secretary of State (see, 1981 Opns St Comp No. 81-24, at 23).

Therefore, we modify the order by vacating the second ordering paragraph and remit this matter to Supreme Court for a hearing on the motion for a preliminary injunction. (Appeal from Order of Supreme Court, Onondaga County, Major, J.— Injunction.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Boehm, JJ.