
    Commissioner of Community Development of the City of Rochester, Appellant-Respondent, v Vincent P. Apton et al., Respondents-Appellants.
   Order unanimously modified, on the law, and, as modified, affirmed without costs, in accordance with the following memorandum: The court has granted summary judgment declaring the present zoning of the respondents’ property unconstitutional solely on the basis of the res judicata and collateral estoppel effect of judgments granted more than 20 years ago. This was error. Respondents, as the parties seeking the benefit of collateral estoppel, had the burden of demonstrating that the issues in this proceeding are the same as those determined in the prior litigation (Kaufman v Lilly & Co., 65 NY2d 449, 456). The judgments in the prior actions were based upon the conditions of the property and the surrounding neighborhood as they then existed. Due to the substantial lapse of time, there is no presumption that the conditions are the same now. Since respondents in their motion papers have failed to demonstrate that the conditions have not significantly changed since the time of the prior determinations, the court erred in summarily granting respondents’ motion. The order appealed from is modified, therefore, by deleting the provision declaring the current zoning unconstitutional on the grounds of res judicata and collateral estoppel. (Appeals from order of Supreme Court, Monroe County, Scudder, J.—injunction.) Present—Hancock, Jr., J. P., Callahan, Denman, Boomer and Green, JJ.  