| Matter of 24 Franklin Ave. R.E. Corp. v Heaship |
| 2010 NY Slip Op 05014 [74 AD3d 980] |
| June 8, 2010 |
| Appellate Division, Second Department |
| In the Matter of 24 Franklin Avenue R.E. Corp. et al.,Respondents, v Thomas Heaship et al., Respondents/Defendants, and Stephen Maltitanoet al., Appellants. |
—[*1] Lawrence R. Mulligan, Mamaroneck, N.Y. (Joseph C. Messina of counsel), forpetitioners/plaintiffs-respondents.
In a hybrid proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus tocompel the issuance certain building permits and action for a judgment declaring that Local LawNo. 4 (2007) of the Town/Village of Harrison, enacted by the Board of Trustees of theTown/Village of Harrison on September 20, 2007, is invalid, the appeal, as limited by theappellants' brief, is from so much of a judgment of the Supreme Court, Westchester County(Zambelli, J.), entered September 16, 2008, as, in effect, declared that Local Law No. 4 (2007) ofthe Town/Village of Harrison is invalid on the grounds that it constitutes impermissible spotzoning and was not adopted in accordance with the relevant comprehensive plan.
Ordered that the judgment is reversed insofar as appealed from, on the law, with costs, andthe matter is remitted to the Supreme Court, Westchester County, for further proceedingsconsistent herewith.
As the appellants correctly contend, under the circumstances presented here, the SupremeCourt erred in its use of a summary procedure in awarding judgment on the causes of actionwhich sought a judgment declaring that a zoning ordinance enacted as Local Law No. 4 (2007)of Town/Village of Harrison (hereinafter LL No. 4) is invalid. In a hybrid CPLR article 78proceeding and declaratory judgment action, separate procedural rules apply to each respectivepart of the proceeding and action (seeMatter of Highland Hall Apts., LLC v New York State Div. of Hous. & CommunityRenewal, 66 AD3d 678, 681 [2009]; Matter of Cornerstone Realty Group, LLC v County of Greene, 28AD3d 1033, 1035 [2006]; see also Matter of Cromwell Towers Redevelopment Co. vCity of Yonkers, 41 NY2d 1, 5 [1976]; Matter of Tupper v City of Syracuse, 46 AD3d 1343, 1344 [2007];Matter of Steve's Star Serv. v County of Rockland, 278 AD2d 498 [2000]). Under thecircumstances of this case, the causes of action seeking a judgment declaring that LL No. 4 isinvalid are properly deemed causes of action for a declaratory judgment, rather than for reliefpursuant to CPLR article 78 (see CPLR 3001; Walton v New York State Dept. of Correctional Servs., 8 NY3d186, 194 [2007]; Matter of Save the Pine Bush v City of Albany, 70 [*2]NY2d 193, 202-203 [1987]; see also CPLR 103 [c]).Consequently, the Supreme Court erred in issuing a judgment declaring that LL No. 4 is invalidby using a summary procedure that pertains only to CPLR article 78 proceedings (CPLR 7804).Accordingly, the matter must be remitted to the Supreme Court, Westchester County, for furtherproceedings on the causes of action for a declaratory judgment, in which those causes of actionshall be treated as if they had been asserted in a plenary action (see generally CPLR 103[c]; see also Matter of Cromwell Towers Redevelopment Co. v City of Yonkers, 41NY2d at 5; Matter of Tupper v City of Syracuse, 46 AD3d at 1344). Dillon, J.P., Balkin,Belen and Lott, JJ., concur.