| Jones v Town of Carroll |
| 2008 NY Slip Op 10263 [57 AD3d 1379] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| Donald J. Jones et al., Appellant, v Town of Carroll et al., Respondent.(Appeal No. 2.) |
—[*1] Erickson Webb Scolton & Hajdu, Lakewood (Paul V. Webb, Jr., of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Chautauqua County (Timothy J. Walker, A.J.),entered September 21, 2007 in a declaratory judgment action. The order granted defendants' motion todismiss the amended complaint and denied plaintiffs' cross motion for summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law by denyingthe motion and reinstating the amended complaint and as modified the order is affirmed without costs.
Memorandum: While an action between plaintiffs and defendants was pending with respect toLocal Law No. 1 of 2005 (Jones v Town of Carroll, 57 AD3d 1376 [2008]), defendantsenacted Local Law No. 1 of 2007 (2007 Law), which made the operation of solid waste managementfacilities located in defendant Town of Carroll a class A misdemeanor but exempted, inter alia, "[a]nybona-fide solid waste management facility which is in operation under a permit issued by the New YorkState Department of Environmental Conservation [DEC] as of the date of this Local Law. . . under the current terms and conditions of its existing operating permit issued by theDEC." Plaintiffs commenced this action seeking a judgment declaring that the 2007 Law is null andvoid.
Defendants moved to dismiss the amended complaint pursuant to CPLR 3211 (a) (7) and (8)alleging, inter alia, that plaintiffs sought merely an advisory opinion. Plaintiffs cross-moved for summaryjudgment on the same grounds raised in their motion in appeal No. 1 (Jones, 57 AD3d 1376[2008]). We conclude that Supreme Court erred in granting defendants' motion, and we thereforemodify the order accordingly. First, although the action sought a determination of plaintiffs' rights uponthe happening of a future event, that future event is not one that is "beyond the control of the parties"(New York Pub. Interest Research Group v Carey, 42 NY2d 527, 531 [1977]; seeCuomo v Long Is. Light. Co., 71 NY2d 349, 354 [1988]). Second, plaintiffs have raised a validchallenge under article 8 of the Environmental Conservation Law, and thus a justiciable [*2]controversy exists (see Matter of Gordon v Rush, 299 AD2d 20,30 [2002], affd 100 NY2d 236 [2003]; Society of Plastics Indus. v County ofSuffolk, 77 NY2d 761, 778 [1991]; see generally Matter of Save the Pine Bush v City ofAlbany, 70 NY2d 193, 203 [1987]).
We further conclude, however, that plaintiffs are not entitled to summary judgment on theiramended complaint, for the reasons stated in our decision in appeal No. 1 (Jones 57 AD3d1376 [2008]). Present—Martoche, J.P., Smith, Centra, Peradotto and Pine, JJ.