Opinion
March 23, 1964
In an action to declare invalid and unconstitutional an ordinance adopted March 25, 1963 by the defendant Village of Elmsford amending its zoning ordinance, the plaintiffs appeal from an order of the Supreme Court, Westchester County, dated July 15, 1963, which: (a) denied their motion to enjoin all proceedings on the part of the defendants pending the trial and determination of the action; and (b) granted the cross motion of the defendant village to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Order modified by striking out the third decretal paragraph granting the motion of the defendant village to dismiss the complaint, and by substituting therefor a paragraph denying such motion. As so modified, order affirmed, without costs, with leave to the defendants to serve an answer within 20 days after entry of the order hereon. The Special Term properly exercised its discretion in denying plaintiffs' motion for a temporary injunction ( Incorporated Vil. of Brookville v. Paulgene Realty Corp., 9 A.D.2d 770; Green Co. v. Industrial Development, 8 A.D.2d 785; Voorhees Hobart v. Hobart, 251 App. Div. 111). However, plaintiffs' complaint sufficiently alleged pecuniary loss in the value of their land ( Marcus v. Village of Mamaroneck, 283 N.Y. 325, 333), as distinguished from prospective loss in business as a result of competition (cf. Bazinsky v. Kesbec, Inc., 259 App. Div. 467, 471, affd. on other grounds 286 N.Y. 655; Matter of Warehousemen's Assn. v. Cosgrove, 227 App. Div. 560, 562), so as to constitute them aggrieved parties to contest the validity of the rezoning ordinance. We are of the opinion that the complaint also contains sufficient allegations to entitle plaintiffs to a trial with respect to their claim that the rezoning ordinance was adopted only for the special benefit of the owners of the land rezoned, and that such rezoning was not in accordance with a comprehensive plan and represented "spot zoning." We are also of the opinion that plaintiffs may not sue as vindicators of any rights vouchsafed to the Westchester County Planning Board under section 451 of the Westchester County Administrative Code (L. 1961, ch. 822). The right of judicial review authorized by that statute must be pursued by the County Planning Board; and it appears that said board has not instituted a proceeding for such judicial review of the ordinance in suit. [For companion appeal, see Matter of Westchester Motels v. Town of Greenburgh, 20 A.D.2d 853. ] Beldock, P.J., Ughetta, Brennan, Rabin and Hopkins, JJ., concur.