Greene v. Town of Southeast

Appellate Division of the Supreme Court of New York

Greene v. Town of Southeast

86 A.D.2d 650, 446 N.Y.S.2d 407, 1982 N.Y. App. Div. LEXIS 15195

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 29, 1982

StatusPublished

This text of 86 A.D.2d 650 (Greene v. Town of Southeast) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Greene v. Town of Southeast, 86 A.D.2d 650, 446 N.Y.S.2d 407, 1982 N.Y. App. Div. LEXIS 15195 (N.Y. Ct. App. 1982).

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Opinion

In an action, inter alia, (1) to declare null and void as to the plaintiffs the action of the Town Board of the Town of Southeast in repealing article 17 of the Zoning Ordinance of the Town of Southeast, and (2) to recover damages resulting from a claimed willful delay of the town board in considering their [651]*651application for a special exception, plaintiffs appeal from a judgment of the Supreme Court, Putnam County (Beisheim, J.), dated November 2, 1979, which, after a nonjury trial, dismissed both causes on the merits. Judgment modified, on the law, by deleting the first decretal paragraph and substituting therefor a provision declaring that the action of the Town Board of the Town of Southeast in repealing article 17 of the Zoning Ordinance of the Town of Southeast was not null and void as applied to plaintiffs. As so modified, judgment affirmed, with costs to defendant. We agree with Trial Term that the action of the Town Board of the Town of Southeast in repealing article 17 of the Zoning Ordinance of the Town of Southeast was not null and void as applied to plaintiffs. However, it was error to dismiss plaintiffs’ cause for a declaratory judgment merely because plaintiffs were not entitled to the declaration sought by them (see Lanza v Wagner, 11 NY2d 317, 334, app dsmd 371 US 74). Instead, a declaration as to the rights of the parties should have been made. Damiani, J. P., Titone, Mangano and Weinstein, JJ., concur.

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In an action, inter alia, (1) to declare null and void as to the plaintiffs the action of the Town Board of the Town of Southeast in repealing article 17 of the Zoning Ordinance of the Town of Southeast, and (2) to recover damages resulting from a claimed willful delay of the town board in considering their [651]*651application for a special exception, plaintiffs appeal from a judgment of the Supreme Court, Putnam County (Beisheim, J.), dated November 2, 1979, which, after a nonjury trial, dismissed both causes on the merits. Judgment modified, on the law, by deleting the first decretal paragraph and substituting therefor a provision declaring that the action of the Town Board of the Town of Southeast in repealing article 17 of the Zoning Ordinance of the Town of Southeast was not null and void as applied to plaintiffs. As so modified, judgment affirmed, with costs to defendant. We agree with Trial Term that the action of the Town Board of the Town of Southeast in repealing article 17 of the Zoning Ordinance of the Town of Southeast was not null and void as applied to plaintiffs. However, it was error to dismiss plaintiffs’ cause for a declaratory judgment merely because plaintiffs were not entitled to the declaration sought by them (see Lanza v Wagner, 11 NY2d 317, 334, app dsmd 371 US 74). Instead, a declaration as to the rights of the parties should have been made. Damiani, J. P., Titone, Mangano and Weinstein, JJ., concur.

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Bluebook (online)

86 A.D.2d 650, 446 N.Y.S.2d 407, 1982 N.Y. App. Div. LEXIS 15195, Counsel Stack Legal Research, https://law.counselstack.com/opinion/greene-v-town-of-southeast-nyappdiv-1982.

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