| Hunter Sports Shooting Grounds, Inc. v Foley |
| 2010 NY Slip Op 03874 [73 AD3d 702] |
| May 4, 2010 |
| Appellate Division, Second Department |
| Hunter Sports Shooting Grounds, Inc., Appellant, v BrianX. Foley et al., Constituting the Town Board of the Town of Brookhaven, Respondents, andCounty of Suffolk, Appellant. |
—[*1] Christine Malafi, County Attorney, Hauppauge, N.Y. (Ann K. Kandel and John R. Petrowskiof counsel), for defendant-appellant. Snitow Kanfer Holtzer & Millus, LLP, New York, N.Y. (Paul F. Millus and Virginia K.Trunkes of counsel), for defendants-respondents.
In an action, inter alia, for a judgment declaring that the defendants' actions in enforcing aTown of Brookhaven noise ordinance against the plaintiff are unconstitutional, the defendantCounty of Suffolk appeals (1), as limited by its brief, from so much of an order of the SupremeCourt, Suffolk County (Weber, J.), dated January 30, 2009, as denied the plaintiff's cross motionfor summary judgment on the first, second, third, and sixth causes of action against thedefendants Brian X. Foley, Steve Fiore-Rosenfeld, Kevin T. McCarrick, Kathleen E. Walsh,Connie Kepert, Carol Bissonette, and Timothy P. Mazzei, constituting the Town Board of theTown of Brookhaven, and, sua sponte, directed the Town of Brookhaven to add the County ofSuffolk as a defendant on any and all of the subject noise complaints now pending in the SixthDistrict Court, Suffolk County, and, sua sponte, directed the Town of Brookhaven to name theCounty of Suffolk as a defendant in any future prosecution for alleged noise violations under theBrookhaven Town Code concerning the subject shooting range or the plaintiff, and (2) an orderof the same court dated June 3, 2009, which denied its motion to vacate the January 30, 2009,order and for leave to reargue the plaintiff's cross motion for summary judgment on the first,second, third, and sixth causes of action, and the plaintiff separately appeals, as limited by itsbrief, from so much of the order dated January 30, 2009, as denied its cross motion for summaryjudgment on the first, second, third, and sixth causes of action and, sua sponte, dismissed theaction in its entirety.
Ordered that the appeal by the County of Suffolk from so much of the order dated January30, 2009, as denied the plaintiff's cross motion for summary judgment is dismissed, without costsor disbursements, as that defendant is not aggrieved by that portion of the order (seeCPLR 5511); and it is further,
Ordered that the appeal by the County of Suffolk from so much of the order dated June 3,2009, as denied that branch of its motion which was for leave to reargue is dismissed, as noappeal lies [*2]from an order denying reargument; and it isfurther,
Ordered that on the Court's own motion, the notice of appeal by the County of Suffolk fromso much of the order dated January 30, 2009, as, sua sponte, directed the Town of Brookhaven toadd the County of Suffolk as a defendant on any and all of the subject noise complaints nowpending in the Sixth District Court, Suffolk County, and, sua sponte, directed the Town ofBrookhaven to name the County of Suffolk as a defendant in any future prosecution for allegednoise violations under the Brookhaven Town Code concerning the subject shooting range or theplaintiff, is treated as an application for leave to appeal from those portions of the order, andleave to appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that on the Court's own motion, the notice of appeal by the plaintiff from so much ofthe order dated January 30, 2009, as, sua sponte, dismissed the instant action in its entirety istreated as an application for leave to appeal from that portion of the order, and leave to appeal isgranted (see CPLR 5701 [c]); and it is further,
Ordered that the order dated January 30, 2009, is reversed insofar as reviewed, on the law,the facts, and in the exercise of discretion, without costs or disbursements, and the matter isremitted to the Supreme Court, Suffolk County, for further proceedings in accordance herewith;and it is further,
Ordered that the appeal by the County of Suffolk from so much of the order dated June 3,2009, as denied that branch of its motion which was to vacate the order dated January 30, 2009,is dismissed as academic, without costs or disbursements, in light of our determination on theappeal from the order dated January 30, 2009.
The plaintiff operates a trap and skeet shooting range on county-owned lands as the licenseeof the County of Suffolk (hereinafter the County). In November and December 2006, the Townof Brookhaven commenced a series of proceedings in the Sixth District Court, Suffolk County(hereinafter the District Court), alleging that the plaintiff was in violation of the Town's noiseordinance (i.e., chapter 50 of the Brookhaven Town Code) at various times. The plaintiff thencommenced this action, inter alia, for a judgment declaring that the Town's actions in enforcingthe noise ordinance against it were unconstitutional. In a prior order dated May 8, 2007, theSupreme Court directed that the County, as the owner of the land where the plaintiff operated itsbusiness, be joined as a necessary party. The Town subsequently moved for summary judgmentdismissing the complaint, and the plaintiff cross-moved for summary judgment in its favor on thefirst, second, third, and sixth causes of action. The County did not submit any papers withrespect to either the motion or the cross motion. In an order dated January 30, 2009, the SupremeCourt, sua sponte, dismissed the action on a ground not raised by the Town, i.e., that theresolution of the instant matter should be left to the discretion of the District Court wherein theprosecution of the alleged noise ordinance violations were pending. In the same order, theSupreme Court, sua sponte, directed the Town to add the County as a defendant on the noiseviolation proceedings currently pending in the District Court and on any future noise violationsummonses it may issue with respect to that site. In the order, the Supreme Court denied "anyand all other prayers for relief." The County then moved to vacate the order dated January 30,2009, pursuant to CPLR 5015 and for leave to reargue, which motion was denied in an orderdated June 3, 2009.
The Supreme Court erred in, sua sponte, dismissing this action on the ground that theresolution of the instant matter should be left to the discretion of the District Court. Although theDistrict Court has jurisdiction over the Town's prosecution of the noise ordinance violations, thatcourt is incapable of adjudicating the issues raised in the instant action regarding whether thenoise ordinance is constitutional and whether the noise ordinance, if constitutional, may belawfully and properly applied to the plaintiff. "A request for relief in the form of a declaratoryjudgment may not be refused simply because of the pendency of a separate action if all legal andfactual issues cannot be disposed of in the pending suit or if the controversy will not necessarilybe determined therein" (Abed v Zach Assoc., 124 AD2d 531, 532 [1986]). The DistrictCourt lacks jurisdiction to award the declaratory relief that was sought in the instant action(see CPLR 3001; see generally Morrison v Budget Rent A Car Sys., 230 AD2d253 [1997]).
Further, the Supreme Court improvidently exercised its discretion in directing the Town toadd the County as a defendant in all pending and future noise ordinance violation proceedings inthe [*3]District Court, which relief was not requested by eitherthe Town or the plaintiff in their moving papers (see Clair v Fitzgerald, 63 AD3d 979, 980 [2009]; Frankel v Stavsky, 40 AD3d 918,919 [2007]; HCE Assoc. v 3000 Watermill Lane Realty Corp., 173 AD2d 774, 774-775[1991]).
Since the Supreme Court considered neither the Town's motion for summary judgment northe plaintiff's cross motion for summary judgment on the merits, we remit the matter to theSupreme Court, Suffolk County, for determination of the motion and cross motion for summaryjudgment (see Metropolitan Prop. &Cas. Ins. Co. v Village of Croton-on-Hudson, 44 AD3d 724 [2007]; Cardo v Board of Mgrs., Jefferson Vil.Condo 3, 29 AD3d 930, 931 [2006]; American Fedn. of School Adm'rs, AFL-CIO vCouncil of Adm'rs & Supervisors, 266 AD2d 417, 418 [1999]). Santucci, J.P., Angiolillo,Leventhal and Lott, JJ., concur.