Woodside Estates Civic Ass'n v. Town of Brookhaven

105 A.D.2d 744, 481 N.Y.S.2d 178, 1984 N.Y. App. Div. LEXIS 20854

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1984
• Status: Published

Opinion

In an action for a judgment declaring the invalidity of an ordinance of the respondent town changing a building zone, plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Geiler, J.), dated July 19, 1983, which, after a trial, dismissed the complaint.

Judgment modified, on the law, by adding thereto a provision declaring that the ordinance in question is valid and dismissing the plaintiff’s complaint in all other respects. As so modified, judgment affirmed, with one bill of costs to respondents.

Special Term erred in dismissing plaintiff’s complaint without declaring the rights of the parties (Lanza v Wagner, 11 NY2d 317, 334, app dsmd 371 US 74, cert den 371 US 901).

Plaintiff’s receipt of actual notice of, and its appearance at, the public hearing constituted a waiver of the requirement that notice be given in strict accordance with the Code of the Town of Brookhaven (see Avelli v Town of Babylon, 54 Misc 2d 662; North Shore Beach Prop. Owners Assn. v Town of Brookhaven, 115 NYS2d 670). Weinstein, J. P., Brown, Boyers and Eiber, JJ., concur.