Opinion
October 2, 1998
Appeal from Order of Supreme Court, Onondaga County, Major, J. — Injunction.)
Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Plaintiff, Town of Tully, appeals from an order that denied without a hearing its motion for a preliminary injunction enjoining defendants from conducting mining operations in the Town and vacated the temporary restraining order previously issued by Supreme Court.
In an action seeking enforcement of a zoning ordinance, plaintiff is entitled to a preliminary injunction if the record establishes that defendant violated the zoning ordinance; plaintiff is "not required to meet the three-prong test generally applicable to requests for injunctive relief" ( Eggert v. LeFever, 222 A.D.2d 1043, 1044; see, Vanno v. River Mkt. Commodities, 168 A.D.2d 979). Where, as here, plaintiff establishes such violation and defendants submit evidence sufficient to raise an issue of fact whether there was a preexisting nonconforming use, "the court shall make a determination by hearing or otherwise whether each of the elements required for issuance of a preliminary injunction exists" (CPLR 6312 [c]). Issues of fact exist whether defendants' mining operation is a preexisting nonconforming use and, concomitantly, whether plaintiff is entitled to a preliminary injunction. In light of the evidence presented by plaintiff, the court erred in summarily denying the motion for a preliminary injunction without holding a hearing ( see, CPLR 6312 [c]; Independent Health Assn. v. Murray, 233 A.D.2d 883, 884).
Contrary to defendants' contention, "the Mined Land Reclamation Law does not preempt a municipality's authority, by means of its zoning powers, to regulate or prohibit the use of land within its municipal boundaries for mining operations" ( Village of Savona v. Knight Settlement Sand Gravel, 88 N.Y.2d 897, 899; see, Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 680-683). We also reject defendants' contention that the zoning law is ineffective because a zoning map was not filed with the Secretary of State ( see, 1981 Opns St Comp No. 81-24, at 23).
Therefore, we modify the order by vacating the second ordering paragraph and remit this matter to Supreme Court for a hearing on the motion for a preliminary injunction.