Pittsford Plaza, Inc. v. Town of Pittsford

44 A.D.2d 886, 356 N.Y.S.2d 240, 1974 N.Y. App. Div. LEXIS 5014

Opinion

Judgement unanimously modified in accordance with memorandum and as modified affirmed, with costs to respondents. Memorandum: We agree with the determination at Trial Term that plaintiff failed to establish the unconstitutionality of the zoning ordinance for the reasons stated in his decision and the decision in Dauernheim, Inc. v. Town Board of the Town of Hempstead (33 N Y 2d 468.) However, since the action is one for declaratory judgment the court should have declared the validity of the ordinance instead of dismissing the complaint (see Lanza V. Wagner, 11 N Y 2d 317, 334; Town of Pittsford v. Gallea, 25 A D 2d 479, affd. 18 N Y 2d 920). (Appeal from judgment of Monroe Trial Term in declaratory judgment action.) Present — Marsh, P. J., Witmer, Mahoney, Goldman and Del Vecchio, JJ.