Vizzi v. Town Board of Islip

43 A.D.2d 567, 349 N.Y.S.2d 326

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 1973
• Status: Published

Opinion

In consolidated actions with respect to the zoning ordinance of the Town of Islip, Action No. 2 being to declare the ordinance unconstitutional insofar as it is applicable to plaintiffs’ property, plaintiffs appeal from so much of a judgment of the Supreme Court, Suffolk County, entered January 13, 1972, as, after a nonjury trial, dismissed the complaint in Action No. 2. Judgment reversed insofar as appealed from, on the law, without costs, and case remanded to Special Term to consider the effect of the rezoning ordinance, as hereinafter mentioned. The judgment having declared, by a provision from which there has not been an appeal, that the town had rezoned plaintiffs’ parcel from a Residence AAA to a Residence CA district, it is moot whether the parcel’s classification as a Residence AAA district was constitutional. However, the town having subsequent to the judgment reclassified the parcel as a residence district other than AAA or CA, plaintiffs, if they are so advised, may press their constitutional claim against the ordinance’s existing classification of the parcel by applying at the foot of the judgment for a further judgment with respect to the ordinance’s recent amendment. Rabin, P. J., Hopkins, Munder, Latham and Shapiro, JJ., concur.