| Cooper v Town of Islip |
| 2008 NY Slip Op 08697 [56 AD3d 511] |
| November 12, 2008 |
| Appellate Division, Second Department |
| James Cooper, Respondent, v Town of Islip,Appellant. |
—[*1] Grundfast & Morrison, Smithtown, N.Y. (Michael K. Grundfast of counsel), forrespondent.
In an action, inter alia, for a judgment declaring that certain property is a legal three-familydwelling, the defendant appeals, as limited by its brief, from so much of an order of the SupremeCourt, Suffolk County (Farneti, J.), dated August 15, 2007, as denied that branch of its crossmotion which was to vacate a stay of the prosecution of an action entitled People vCooper, now pending in the District Court, Suffolk County, Fifth District, under docketnumber ISTO 1942-06.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's cross motion which was to vacate a stay of the prosecution of an actionentitled People v Cooper, now pending in the District Court, Suffolk County, FifthDistrict, under docket number ISTO 1942-06, is granted.
The plaintiff is the owner of a building located in the Town of Islip, which he contends is alegal three-family dwelling, and which he rents out to various tenants. The plaintiff furtheralleges that the Town has improperly classified the property as a one-family dwelling and hasrefused to issue him the rental permit required by the Town's Code. In 2005 the plaintiffcommenced this action for a judgment declaring that the property is a legal three-familydwelling, and to compel the Town to issue a rental permit for the property. In 2006 the Towncommenced a criminal action in the District Court, Suffolk County, alleging that the plaintiffviolated the Islip Town Code by renting the property without the necessary permit. The plaintiffthen moved to [*2]remove the District Court action to theSupreme Court and obtained a stay of the District Court action pending the determination of themotion. The Town cross-moved to dismiss the declaratory judgment action and to vacate thestay. The Supreme Court, inter alia, denied the plaintiff's motion to remove the criminal actionand denied that branch of the Town's cross motion which was to vacate the stay.
In the case of Reed v Littleton (275 NY 150, 153 [1937]), the Court of Appeals setforth the general proposition that courts of equity "will not ordinarily intervene to enjointhe enforcement of the law by prosecuting officials." As the Court further explained in the latercase of Matter of Morgenthau v Erlbaum (59 NY2d 143, 150-151 [1983], cert denied464 US 993 [1983] [internal quotation marks omitted]): "The remedy of [declaratoryjudgment] is available in cases 'where a constitutional question is involved or the legality ormeaning of a statute is in question and no question of fact is involved' (Dun & Bradstreet, Inc.v. City of New York . . . [276 N.Y. 198, 206]; Bank of Yorktown v. Boland,280 N.Y. 673). The remedy, however, is not available to restrain the enforcement of acriminal prosecution where the facts are in dispute, or open to different interpretations (NewYork Foreign Trade Zone Operators, Inc. v State Liq. Auth., 285 NY 272, 276 )" (seealso Ulster Home Care v Vacco, 255 AD2d 73, 77 [1999]).
Here, there is no constitutional issue involved and the plaintiff does not even question thelegality of the Town ordinance which requires that he obtain a rental permit for the building inquestion. In addition, there clearly is a factual dispute as to whether the property should beclassified as a one-family or a three-family dwelling. Accordingly, the plaintiff's declaratoryjudgment action could not serve as a basis to restrain the enforcement of the District Courtcriminal prosecution (see Reed v Littleton, 275 NY 150 [1937]; Mann v Town ofSouthold, 44 Misc 2d 978 [1964]). Therefore, the Supreme Court erred in denying thatbranch of the Town's cross motion which was to vacate the stay. Lifson, J.P., Santucci, Balkinand Belen, JJ., concur. [See 2007 NY Slip Op 32721(U).]