Biggs v. Town of Huntington

49 A.D.2d 744

Opinion

In an action (in which the appeal was transferred to this court by the Court of Appeals [Biggs v Town of Huntington, 35 NY2d 904]) inter alia to declare that a certain zoning resolution is void and of no effect and to permanently enjoin the establishment of a planned shopping center district and a retirement community district, the appeal, as limited by appellants’ brief, is from so much of a judgment of the Supreme Court, Suffolk County, dated April 16, 1974, as (1) declared, inter alia, that the zoning resolution, insofar as it established a retirement community district, is valid and constitutional and (2) dismissed the complaint. Judgment modified, on the law, by deleting the last decretal paragraph thereof. As so modified, judgment affirmed, insofar as appealed from, with one bill of costs to respondents filing separate briefs, against appellants. The validity and constitutionality of the zoning classification here at issue is confirmed by the determination in Maldini v Ambro (36 NY2d 481). The propriety of the rezoning which furthers that zoning classification has sufficiently been established, as found by Special Term. In view of the declaratory adjudications in respondents’ favor, the dismissal of the complaint was an unnecessary and technically incorrect adjudication. The deletion of that decretal paragraph has, accordingly, been ordered (Cohen v Hockfeld, 36 AD2d 630). Gulotta, P. J., Rabin, Martuscello, Latham and Shapiro, JJ., concur.