Opinion
June 1, 1979
Appeal from the Monroe Supreme Court.
Present — Simons, J.P., Schnepp, Callahan, Doerr and Witmer, JJ.
Order unanimously modified and motion denied as to dismissal of the fourth cause of action, without prejudice to defendants to renew the motion with respect thereto after plaintiffs have had an opportunity for discovery, and, as modified, affirmed, without costs; and determination of the validity of ordinance suspended pending determination of the renewed motion. Memorandum: The answer in this action is dated August 28, 1978; the date of the service does not appear. On September 28, 1978 defendants moved for summary judgment dismissing the complaint, and plaintiffs appeal from the order granting the motion. In the fourth cause of action in the complaint plaintiffs allege that the studies underlying the amendment of the zoning ordinance which is attacked in the action were prepared in part by agents or employees of defendants "who had or may have a direct economic stake in the adverse impact of the amended ordinance" upon the plaintiffs; that defendants' action "contributes to and promotes a restraint of trade concerning" the plaintiffs and "subjects them to an unlawful competitive disadvantage"; and was "ultra vires, [and] without the scope of [the] legislative powers" of defendants. Although such allegations may not be provable, defendants' motion was made before plaintiffs had an opportunity to conduct discovery in support thereof. The facts underlying some of such allegations may be within the control of defendants. We conclude with respect to the fourth cause of action that the motion and order were premature (Bogni v. Hurlbut, 50 A.D.2d 1067; Siegel, New York Practice, §§ 279, 281, p 339).