
    Cornerstone Metrofit Corp., Doing Business as Metrofit Athletic Club of Pelham, Plaintiff, v Rusciano & Son Corp. et al., Defendants.
    [618 NYS2d 428]
   —Action pursuant to CPLR 3222 upon an agreed statement of facts for a declaration that the plaintiffs are entitled to use the common parking area to the rear of their building for rear-yard setback purposes.

Adjudged that the plaintiffs are entitled to use the common parking area to the rear of their building for rear-yard setback purposes, with costs to the plaintiffs.

We held in 6-8 Pelham Parkway Corp. v Rusciano & Son Corp. (170 AD2d 497), that the zoning agreement entered into between the defendants in this action and the Village of Pelham Manor in 1953, as amended in 1955, was intended to give future owners and tenants of buildings in the defendants’ industrial park, such as the plaintiffs in this action, the right to use that area of the site set aside "for setbacks, roadways and automobile parking purposes”. A portion of this common area abutting the rear of the plaintiffs’ building may therefore be used by them for rear setback purposes, and the defendants may not prevent such a legal use of the common area by any means, including the construction of the fence complained of in this action. Mangano, P. J., Thompson, Sullivan and Miller, JJ., concur.  