# Town Board of Town of Ellicott v. Lee

> Appellate Division of the Supreme Court of the State of New York · July 3, 1997 · 241 A.D.2d 958

URL: https://www.frixlaw.com/law-library/cases/6016420

## Case

- **Full name:** Town Board of Town of Ellicott v. E. Dennis Lee, Also Known as Elmer Dennis Lee
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** July 3, 1997
- **Citations:** 241 A.D.2d 958; 661 N.Y.S.2d 384; 1997 N.Y. App. Div. LEXIS 7910
- **Precedential status:** Published
- **Opinion:** Opinion of the court
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6016420

## Opinion text

Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiffs commenced this action seeking a permanent injunction restraining defendants from violating the zoning ordinance of the Town of Ellicott. Supreme Court erred in granting plaintiffs’ motion for summary judgment. “Issue finding rather than issue determination is the function of the court on a motion for summary judgment” (Powell v Tarantino Foods, 234 AD2d 989, 990 ). The court erred in concluding that defendants had the burden of proving the existence of a nonconforming use. Because *959 plaintiffs met their initial burden, defendants in opposition had only to submit evidence raising a factual issue whether the use of the property by defendants and their predecessors in title constituted a nonconforming use (see generally, Zuckerman v City of New York, 49 NY2d 557, 562 ). Defendants met that burden. Further, in determining that defendants failed to establish the existence of a nonconforming use, the court improperly resolved credibility issues (see, Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341 ; Montante v City of Rochester, 187 AD2d 924, 925 ).
The court properly dismissed defendants’ counterclaim seeking attorney’s fees for the maintenance of a frivolous action. There is no such cause of action for that relief. Thus, we modify the judgment by denying plaintiffs’ motion for summary judgment except insofar as it seeks dismissal of the counterclaim and by vacating the permanent injunction. (Appeal from Judgment of Supreme Court, Chautauqua County, Ward, J.—Summary Judgment.) Present—Pine, J. P., Lawton, Callahan, Doerr and Balio, JJ.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6016420. Public record. Not legal advice.