Hollows At Loch Lea Ass'n v. Town of Clarence

Appellate Division of the Supreme Court of New York

Hollows At Loch Lea Ass'n v. Town of Clarence

8 A.D.3d 994, 778 N.Y.S.2d 587, 2004 N.Y. App. Div. LEXIS 8089

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

DecidedJune 14, 2004

StatusPublished

Cited by2 cases

This text of 8 A.D.3d 994 (Hollows At Loch Lea Ass'n v. Town of Clarence) 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.

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Hollows At Loch Lea Ass'n v. Town of Clarence, 8 A.D.3d 994, 778 N.Y.S.2d 587, 2004 N.Y. App. Div. LEXIS 8089 (N.Y. Ct. App. 2004).

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Opinion

Appeal from an order of the Supreme Court, Erie County (Barbara Howe, J.), entered November 19, 2003. The order denied defendant’s motion to dismiss the declaratory judgment [995]*995action and granted plaintiffs cross motion for leave to serve an amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted, the complaint is dismissed and the cross motion is denied.

Memorandum: Supreme Court erred in denying defendant’s motion to dismiss this declaratory judgment action and in granting plaintiff’s cross motion for leave to serve an amended complaint. Plaintiff is an incorporated homeowners’ association comprised of owners of various adjoining parcels of land located in defendant town. Plaintiff commenced this action seeking a declaration that Real Property Law § 339-y (1) (f), RPTL 581 (1) (c) and related local laws are unconstitutional. To encourage condominium ownership, condominium units are assessed so that their aggregate value does not “exceed the total valuation of the property were the property assessed as a parcel” (Real Property Law § 339-y [1] [b]). However, section 339-y (1) (f) and RPTL 581 (1) (c) eliminated the condominium tax benefit to homeowners who convert their home ownership to condominium ownership solely to obtain that tax benefit. Because plaintiff has not made the conversion, this action is merely a request for an advisory opinion. “The courts of New York do not issue advisory opinions for the fundamental reason that in this State ‘[the] giving of such opinions is not the exercise of the judicial function’ ” (Cuomo v Long Is. Light. Co., 71 NY2d 349, 354 [1988], quoting Matter of State Indus. Commn., 224 NY 13, 16 [1918]). Consequently, the court erred in denying defendant’s motion to dismiss the declaratory judgment action (see Town of Islip v Cuomo, 147 AD2d 56, 65-66 [1989]; Bolt Assoc. v Diamonds-In-The-Roth, 119 AD2d 524, 525 [1986]; Board of Educ., Shoreham-Wading Riv. Cent. School Dist. v State of New York, 111 AD2d 505, 507-508 [1985], lv dismissed 66 NY2d 854 [1985]). Present—Wisner, J.P., Hurlbutt, Kehoe, Martoche and Lawton, JJ.

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Appeal from an order of the Supreme Court, Erie County (Barbara Howe, J.), entered November 19, 2003. The order denied defendant’s motion to dismiss the declaratory judgment [995]*995action and granted plaintiffs cross motion for leave to serve an amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted, the complaint is dismissed and the cross motion is denied.

Memorandum: Supreme Court erred in denying defendant’s motion to dismiss this declaratory judgment action and in granting plaintiff’s cross motion for leave to serve an amended complaint. Plaintiff is an incorporated homeowners’ association comprised of owners of various adjoining parcels of land located in defendant town. Plaintiff commenced this action seeking a declaration that Real Property Law § 339-y (1) (f), RPTL 581 (1) (c) and related local laws are unconstitutional. To encourage condominium ownership, condominium units are assessed so that their aggregate value does not “exceed the total valuation of the property were the property assessed as a parcel” (Real Property Law § 339-y [1] [b]). However, section 339-y (1) (f) and RPTL 581 (1) (c) eliminated the condominium tax benefit to homeowners who convert their home ownership to condominium ownership solely to obtain that tax benefit. Because plaintiff has not made the conversion, this action is merely a request for an advisory opinion. “The courts of New York do not issue advisory opinions for the fundamental reason that in this State ‘[the] giving of such opinions is not the exercise of the judicial function’ ” (Cuomo v Long Is. Light. Co., 71 NY2d 349, 354 [1988], quoting Matter of State Indus. Commn., 224 NY 13, 16 [1918]). Consequently, the court erred in denying defendant’s motion to dismiss the declaratory judgment action (see Town of Islip v Cuomo, 147 AD2d 56, 65-66 [1989]; Bolt Assoc. v Diamonds-In-The-Roth, 119 AD2d 524, 525 [1986]; Board of Educ., Shoreham-Wading Riv. Cent. School Dist. v State of New York, 111 AD2d 505, 507-508 [1985], lv dismissed 66 NY2d 854 [1985]). Present—Wisner, J.P., Hurlbutt, Kehoe, Martoche and Lawton, JJ.

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8 A.D.3d 994, 778 N.Y.S.2d 587, 2004 N.Y. App. Div. LEXIS 8089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hollows-at-loch-lea-assn-v-town-of-clarence-nyappdiv-2004.

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