Di Matteo v. State

Kane, J. (dissenting).

We would affirm for the reasons set forth in the clear and comprehensive decision of the Trial Judge. This court should be slow to substitute its judgment for that of the Trial Judge who had the opportunity to view the premises and observe the attitude and demeanor of the expert witnesses who testified as to the reasonable probability of rezoning. In evaluating their testimony as it appears in this record, it seems clear to us that the findings made were based upon evidence of a high enough quality to sustain a finding of the reasonable probability of rezoning (Metzner v State of New York, 43 AD2d 774; Masten v State of New York, 11 AD2d 370, affd 9 NY2d 796).

Herlihy, P. J., and Reynolds, J., concur with Sweeney, J.; Greenblott and Kane, JJ., dissent and vote to affirm in an opinion by Kane, J.

Judgment modified, on the law and the facts, by reducing the amount of damages awarded to $6,000, with interest, and, as so modified, affirmed, without costs.