Opinion
February 11, 1974
In an action inter alia for a declaratory judgment, defendants appeal from a judgment of the Supreme Court, Suffolk County, entered December 18, 1972 after a nonjury trial, which (1) declared sections 68-338 and 68-339 of the Islip Code unconstitutional as applied to plaintiffs' real property and (2) directed defendants to issue a permit to plaintiffs to construct and operate a gasoline service station on their property. Judgment reversed, on the law and the facts, with costs, and judgment granted in favor of defendants declaring that the ordinance is constitutional as applied to plaintiffs' property. In our opinion, plaintiffs failed to meet their burden of proving that application of the ordinance to the subject premises is arbitrary and unreasonable ( Williams v. Town of Oyster Bay, 32 N.Y.2d 78). Martuscello, Acting P.J., Latham, Christ and Munder, JJ., concur.