Silver Dollar Shows, Inc. v. Town of Huntington

152 A.D.2d 558, 543 N.Y.S.2d 488, 1989 N.Y. App. Div. LEXIS 9725

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1989
• Status: Published

Opinion

In an action, inter alia, for a judgment declaring certain provisions of the Code of the Town

of Huntington unconstitutional, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), entered March 1, 1988, which denied its motion, in effect, for summary judgment.

Ordered that the order is affirmed, without costs or disbursements.

By order to show cause dated July 17, 1987, the plaintiff requested judgment declaring certain provisions of the Code of the Town of Huntington unconstitutional, which demand for relief was also set forth in the complaint. This application, in effect for summary judgment, was properly denied as premature. The record reveals that the plaintiff’s application, submitted prior to service of the defendant’s answer and the commencement of pretrial discovery, was made before material facts and circumstances had been fully developed. Consequently, a declaration for either party could not be made at this stage of the proceedings (see, State of New York v Trustees of Freeholders & Commonalty, 99 AD2d 804; Wolff v 969 Park Corp., 86 AD2d 519; 3 Weinstein-Korn-Miller, NY Civ Prac ¶ 3001.13). Mangano, J. P., Brown, Kunzeman and Kooper, JJ., concur.