Rosenblum v. Village of Bellport

Appellate Division of the Supreme Court of New York

Rosenblum v. Village of Bellport

270 A.D.2d 326, 704 N.Y.S.2d 878, 2000 N.Y. App. Div. LEXIS 2690

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

DecidedMarch 13, 2000

StatusPublished

Cited by1 cases

This text of 270 A.D.2d 326 (Rosenblum v. Village of Bellport) 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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Rosenblum v. Village of Bellport, 270 A.D.2d 326, 704 N.Y.S.2d 878, 2000 N.Y. App. Div. LEXIS 2690 (N.Y. Ct. App. 2000).

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Opinion

—In an action for a judgment declaring Local Laws, 1995, No. 1 of the Village of Bellport, establishing “the zoning district of the Cultural and Performing Arts District” unconstitutional, illegal, and void as of the date of its enactment and enjoining the defendant Village of Bellport from entertaining any application to designate any parcels of land subject to that law, (1) the defendant Village of Bellport appeals (a), as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated August 14, 1998, as denied that branch of its motion which was to dismiss the complaint and granted the plaintiffs’ cross motion for summary judgment, and (b) a judgment of the same court dated, January 22, 1999, which declared the subject law void as of the date of its enactment and permanently enjoined its implementation, and (2) the intervenor Allan & Allan Arts Ltd., d/b/a Gateway Playhouse, appeals from the same judgment. The notice of appeal of the Village of Bellport from the order dated August 14, 1998, is also deemed to be a notice of appeal from the judgment (see, CPLR 5501 [c]).

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the law, with one bill of costs, that branch of the motion of the defendant Village of Bellport which was to dismiss the complaint is granted, and the complaint is dismissed, and the order dated August 14, 1998, is modified accordingly.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

It is undisputed that Local Laws, 1995, No. 1 of the Village of Bellport, has not been utilized and has not affected any property. Accordingly, under the circumstances, there is no justici[327]*327able controversy and any decision determining the legality of the law is premature (see, Schultz v City of Port Jervis, 242 AD2d 699). Sullivan, J. P., Luciano, H. Miller and Feuerstein, JJ., concur.

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—In an action for a judgment declaring Local Laws, 1995, No. 1 of the Village of Bellport, establishing “the zoning district of the Cultural and Performing Arts District” unconstitutional, illegal, and void as of the date of its enactment and enjoining the defendant Village of Bellport from entertaining any application to designate any parcels of land subject to that law, (1) the defendant Village of Bellport appeals (a), as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated August 14, 1998, as denied that branch of its motion which was to dismiss the complaint and granted the plaintiffs’ cross motion for summary judgment, and (b) a judgment of the same court dated, January 22, 1999, which declared the subject law void as of the date of its enactment and permanently enjoined its implementation, and (2) the intervenor Allan & Allan Arts Ltd., d/b/a Gateway Playhouse, appeals from the same judgment. The notice of appeal of the Village of Bellport from the order dated August 14, 1998, is also deemed to be a notice of appeal from the judgment (see, CPLR 5501 [c]).

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the law, with one bill of costs, that branch of the motion of the defendant Village of Bellport which was to dismiss the complaint is granted, and the complaint is dismissed, and the order dated August 14, 1998, is modified accordingly.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]).

It is undisputed that Local Laws, 1995, No. 1 of the Village of Bellport, has not been utilized and has not affected any property. Accordingly, under the circumstances, there is no justici[327]*327able controversy and any decision determining the legality of the law is premature (see, Schultz v City of Port Jervis, 242 AD2d 699). Sullivan, J. P., Luciano, H. Miller and Feuerstein, JJ., concur.

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270 A.D.2d 326, 704 N.Y.S.2d 878, 2000 N.Y. App. Div. LEXIS 2690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenblum-v-village-of-bellport-nyappdiv-2000.

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