Opinion
March 22, 1982
In an action, inter alia, to declare the zoning ordinance of the Incorporated Village of Hempstead unconstitutional as it applies to plaintiffs' real property, plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Morrison, J.), dated May 4, 1981, which, after a nonjury trial, granted judgment in favor of defendants and dismissed the plaintiffs' complaint. Judgment modified, on the law, by deleting the provision which dismissed the complaint and substituting a provision declaring that the zoning ordinance of the Incorporated Village of Hempstead is not unconstitutional or confiscatory as applied to plaintiffs' property, and otherwise dismissing the complaint. As so modified, judgment affirmed, without costs or disbursements. Plaintiffs did not sustain their burden of establishing that the zoning ordinance in question was confiscatory and therefore unconstitutional as applied to their property (see Curtiss-Wright Corp. v. Town of East Hampton, 82 A.D.2d 551). The trial court should have made an appropriate declaration of constitutionality (see Lanza v. Wagner, 11 N.Y.2d 317, 334, app dsmd 371 U.S. 74; Bierker v. Town of Clarkstown, 81 A.D.2d 601). Lazer, J.P., Gibbons, Gulotta and Bracken, JJ., concur.