
    Chester Sloane et al., Respondents, v Daniel E. Weber et al., Constituting the Town Board of the Town of Cheektowaga, Appellants, et al., Defendant.
   Order unanimously modified in accordance with memorandum and as modified affirmed, without costs. Memorandum: Plaintiffs, as owners of real property adjacent to commercially rezoned premises, commenced this action against the defendants, members of the Town Board of Cheektowaga. Pursuant to CPLR 3001 plaintiffs sought a judgment declaring the board’s approval of the rezoning application unconstitutional. After service of a notice for examinations before trial, defendants moved for a protective order and for summary judgment. The court erred in denying in part the motion for a protective order with respect to the individual members of the town board (Burack v Town of Poughkeepsie, 32 AD2d 806). However, the Town of Cheektowaga should have been directed to produce for examination any town officer or employee who, in its judgment, has knowledge of the facts of this case (cf. Town Law, § 65). This examination must be limited to the general motives of the legislation and it may not extend to the individual or personal motives of the individual legislators in voting for this legislation (see Burack v Town of Poughkeepsie, supra). There was no error, however, in the court’s denial of the motion for summary judgment. Although defendants are correct in asserting that zoning decisions are presumed to be constitutional, that contention alone will not support this motion. Defendants failed to present evidentiary facts refuting the allegations in plaintiffs’ complaint (Headwell v Sandler, 46 AD2d 584). Since those allegations must be deemed true on a motion for summary judgment (Patrolmen’s Benevolent Assn, of City of N. Y. v City of New York, 27 NY2d 410), defendants have not shown that there is no triable issue of fact or that they have a meritorious defense (Ball v United Artists Corp., 13 AD2d 133). In the absence of such proof, summary judgment will not lie. (Appeal from order of Erie Supreme Court—protective order and summary judgment.) Present—Marsh, P. J., Moule, Simons, Dillon and Goldman, JJ.  