Opinion
May 21, 1976
Appeal from the Erie Supreme Court.
Present — Marsh, P.J., Moule, Simons, Dillon and Goldman, JJ.
Order unanimously modified in accordance with memorandum and as modified affirmed, without costs. Memorandum: Plaintiffs, as owners of real property adjacent to commercially rezoned premises, commenced this action against the defendants, members of the Town Board of Cheektowaga. Pursuant to CPLR 3001 plaintiffs sought a judgment declaring the board's approval of the rezoning application unconstitutional. After service of a notice for examinations before trial, defendants moved for a protective order and for summary judgment. The court erred in denying in part the motion for a protective order with respect to the individual members of the town board (Burack v Town of Poughkeepsie, 32 A.D.2d 806). However, the Town of Cheektowaga should have been directed to produce for examination any town officer or employee who, in its judgment, has knowledge of the facts of this case (cf. Town Law, § 65). This examination must be limited to the general motives of the legislation and it may not extend to the individual or personal motives of the individual legislators in voting for this legislation (see Burack v Town of Poughkeepsie, supra). There was no error, however, in the court's denial of the motion for summary judgment. Although defendants are correct in asserting that zoning decisions are presumed to be constitutional, that contention alone will not support this motion. Defendants failed to present evidentiary facts refuting the allegations in plaintiffs' complaint (Headwell v Sandler, 46 A.D.2d 584). Since those allegations must be deemed true on a motion for summary judgment (Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 27 N.Y.2d 410), defendants have not shown that there is no triable issue of fact or that they have a meritorious defense (Ball v United Artists Corp., 13 A.D.2d 133). In the absence of such proof, summary judgment will not lie.