Opinion
December 16, 1983
Appeal from the Supreme Court, Genesee County, Wolf, J.
Present — Callahan, J.P., Denman, Boomer, O'Donnell and Schnepp, JJ.
Judgment unanimously affirmed, without costs. Memorandum: In this action seeking a declaratory judgment as to a nonconforming use, plaintiffs appeal from a judgment which dismisses their complaint and grants defendants' counterclaim enjoining them from using a portion of the premises as an automobile junkyard. The determination of the court following a nonjury trial that plaintiffs did not establish a prior nonconforming use to the portion of their property south of the highway is supported by the evidence. The proof did not demonstrate that the property was actually being used for the nonconforming purpose at the time the zoning ordinance became effective (see Matter of Syracuse Aggregate Corp. v. Weise, 51 N.Y.2d 278, 284-285). The court erred, nevertheless, in denying plaintiffs an opportunity to explain their failure to include the parcel in question on certain maps introduced into evidence by defendants and filed with plaintiffs annual applications for junkyard permits for the remainder of their property (see Ferris v. Sterling, 214 N.Y. 249). This error is harmless, however, since there is little or no relevance between the nonconforming use of the land on the date the ordinance became effective and plaintiffs' later permit applications.