Opinion
April 26, 1999
Appeal from the Supreme Court, Dutchess County (Jiudice, J.).
Ordered that the appeal from so much of the order and judgment as denied the motion by the plaintiffs to dismiss the counterclaim against them and granted that branch of the motion of the defendants Sour Mountain Realty, Inc., and Southern Dutchess Sand and Gravel, Inc., which was to compel discovery on the counterclaim is dismissed as academic; and it is further,
Ordered that the order and judgment is reversed insofar as reviewed on the appeal of the plaintiffs, the plaintiffs' motion for summary judgment is granted, it is declared that Local Laws, 1993, No. 4, of the Town of Fishkill is void and unenforceable, and the defendants Sour Mountain Realty, Inc., and Southern Dutchess Sand and Gravel, Inc., are enjoined from using their property for any use not permitted in an R-40 and R-4A residential zone; and it is further,
Ordered that the order and judgment is affirmed insofar as cross-appealed from; and it is further,
Ordered that the plaintiffs are awarded one bill of costs.
As a result of an order of the Supreme Court, Dutchess County, dated January 19, 1999 [ 179 Misc.2d 430], which granted the plaintiffs' renewed motion to dismiss the counterclaim against them, the appeal from so much of the order and judgment entered December 9, 1997, as denied the motion by the plaintiffs to dismiss the counterclaim against them and granted that branch of the motion of the defendants Sour Mountain Realty, Inc. (hereinafter Sour Mountain), and Southern Dutchess Sand and Gravel, Inc. (hereinafter Southern Dutchess), to compel discovery on that counterclaim is dismissed as academic.
In light of this Court's decision and order in Matter of Scenic Hudson v. Town of Fishkill Town Bd. ( 258 A.D.2d 654), which declared Local Laws, 1993, No. 4 of the Town of Fishkill to be void and unenforceable, the plaintiffs' motion for summary judgment on the action seeking a judgment declaring that Local Law to be invalid is granted. As a result, Sour Mountain and Southern Dutchess are enjoined from using their property for any use not permitted in an R-40 and R-4A residential zone.
Moreover, the court properly denied that branch of the motion of Sour Mountain and Southern Dutchess which was for an award of attorneys' fees and disbursements ( see, Matter of Kernisan v. Taylor, 171 A.D.2d 869).
Santucci, J. P., Sullivan, Florio and McGinity, JJ., concur.