Hofstra University v. Boslet

114 A.D.2d 368, 493 N.Y.S.2d 886, 1985 N.Y. App. Div. LEXIS 53049

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 7, 1985
• Status: Published

Opinion

—In a proceeding pursuant to CPLR article 78 to prohibit respondent from requiring petitioner to comply with a provision of the Nassau County Fire Prevention Ordinance, petitioner appeals from a judgment of the Supreme Court, Nassau County (Velsor, J.), entered May 24, 1985, which dismissed the proceeding.

Judgment affirmed, without costs or disbursements.

In this proceeding, petitioner claims that Nassau County’s local Fire Prevention Ordinance has been superseded by the New York State Uniform Fire Prevention and Building Code (9 NYCRR part 600 et seq.) and, therefore, that respondent, the Fire Marshall of the County of Nassau, may not enforce a provision of the ordinance requiring installation of a sprinkler system in a new building being constructed by petitioner.

This proceeding by way of prohibition must be dismissed because the Fire Marshall is properly performing a duty binding on him to enforce an existing ordinance. Petitioner’s challenge is to the validity of that ordinance rather than to the Fire Marshall’s authority. Such a challenge properly should be made by way of a declaratory judgment action against the county (Matter of National Merritt v Weist, 50 AD2d 817, affd 41 NY2d 438; Matter of Overhill Bldg. Co. v Delany, 28 NY2d 449). Since the county has not been made a party to this proceeding, this proceeding must be dismissed without prejudice to the institution of an action against the necessary parties (see, Matter of Overhill Bldg. Co. v Delany, supra, at p 458). Mangano, J. P., Rubin, Lawrence and Fiber, JJ., concur.