
    Cimato Bros., Inc., Respondent, v Town of Pendleton, Appellant, et al., Defendant.
    (Appeal No. 1.)
    [677 NYS2d 923]
   Order unanimously reversed on the law without costs and motion denied. Memorandum: Supreme Court erred in granting plaintiffs motion for summary judgment declaring unconstitutional that portion of the 1989 amendment to the Public Improvement Project Ordinance of defendant Town of Pendleton (Town) establishing a fee for the Town’s cost of providing inspection services with respect to the construction of public improvements. In order to succeed on its motion, plaintiff was required to establish beyond a reasonable doubt that there is no reasonable basis for the amended fee structure (see, Town of N. Hempstead v Exxon Corp., 53 NY2d 747; Lighthouse Shores v Town of Islip, 41 NY2d 7, 11-12) and to negate the existence of all material issues of fact (see, Doe v Roe, 190 AD2d 463, 475-476, lv dismissed 82 NY2d 846). On a prior appeal, we identified several factors relevant to a determination whether a reasonable basis existed for the amended fee structure (Cimato Bros, v Town of Pendleton, 237 AD2d 883, 884-885). We concluded that the Town, as the party seeking summary judgment, failed to sustain its burden to negate the existence of factual issues with respect to those factors. In this appeal, plaintiff likewise has failed to sustain its burden to negate the existence of factual issues with respect to those factors. Thus, its motion should have been denied, irrespective of the sufficiency of the opposing papers (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). (Appeal from Order of Supreme Court, Niagara County, Fahey, J. — Summary Judgment.) Present — Denman, P. J., Pine, Wisner, Balio and Fallon, JJ.  