Gerace v. Town of Webb

12 A.D.3d 1142, 784 N.Y.S.2d 438, 2004 N.Y. App. Div. LEXIS 14038

Opinion

Appeal from a judgment (denominated order) of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered June 16, 2003. The judgment dismissed the complaint and declared that Town of Webb Local Law No. 1 of 2002 is constitutional.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the first decretal paragraph and as modified the judgment is affirmed without costs.

Memorandum: Supreme Court erred in dismissing the complaint in this declaratory judgment action, and we therefore modify the judgment by vacating the first decretal paragraph (see Tumminello v Tumminello, 204 AD2d 1067 [1994]). We otherwise affirm. Present—Green, J.P., Scudder, Gorski, Martoche and Hayes, JJ.