Hillside Property Owners Ass'n v. Hebrew Hospital for Chronic Sick, Inc.

44 A.D.2d 667, 354 N.Y.S.2d 441, 1974 N.Y. App. Div. LEXIS 5219

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 18, 1974
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County, entered on July 31, 1973, unanimously modified, on the law, to the extent of striking therefrom the decretal paragraph dismissing the complaint and substituting therefor a provision declaring that construction of the nursing home as proposed does not constitute a public nuisance and that such facility is not barred by reason of the restrictive covenant running to plaintiffs Shnayerson, Kelton, and Woeltz, and as so modified the judgment is affirmed, without costs and without disbursements. We agree with the findings and conclusions reached by Trial Term. However, since this was an action for declaratory judgment, it was error to dismiss the complaint and a declaration of the parties’ rights should have been made. (See St. Lawrence Univ. v. Trustees of Theol. School of St. Lawrence Univ., 20 N Y 2d 317, 325; Lanza v. Wagner, 11 N Y 2d 317, 334, app. dsmd. 371 U. S. 74; New York Sporting Arms Assn. v. City of New York, 31 A D 2d 793, and cases cited therein.) Concur — Nunez, J. P., Kupferman, Steuer, Tilzer and Lane, JJ.