D.B.C.G., Inc. v. Town of Ramapo

• Decision Date: 16 January 1984
• Citation: 99 A.D.2d 502,470 N.Y.S.2d 670
• Parties: D.B.C.G., INC., Respondent, v. TOWN OF RAMAPO, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 670

470 N.Y.S.2d 670

99 A.D.2d 502

D.B.C.G., INC., Respondent, v. TOWN OF RAMAPO, et al., Appellants.

Supreme Court, Appellate Division Second Department.

Jan. 16, 1984.

Hershel Greenbaum, Town Atty., Suffern (Andrew R. Stoller, Deputy Town Atty., Suffern, of counsel), for appellants.

Dennis G. Katz, New City, for respondent.

Before MANGANO, J.P., and GIBBONS, WEINSTEIN and BROWN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78 to compel the issuance of a building permit to petitioner so that renovations could be made to its property in order to operate a residence for the mentally retarded under the provisions of the Mental Hygiene Law, the appeal (by permission) is from so much of an order of the Supreme Court, Rockland County, dated April 22, 1983, as denied those branches of defendants' motion which sought dismissal of so much of the proceeding as sought other relief in addition to money damages, and directed them to submit an answer. This appeal brings up for review so much of an order of the same court, dated July 14, 1983, as, upon reargument, adhered to its original determination.

Appeal from the order dated April 22, 1983, dismissed, without costs or disbursements. That order was superseded by the order dated July 14, 1983, made upon reargument.

Order dated July 14, 1983 modified by adding a provision severing petitioner's claim pursuant to section 40-d of the Civil Rights Law and converting said claim into a plenary action. As so modified, order affirmed insofar as reviewed, without costs or disbursements. The order dated April 22, 1983 is modified accordingly.

A proceeding pursuant to CPLR article 78 to compel a body or officer to perform a duty imposed upon it or him by law must be brought against the body or officer whose performance is sought (CPLR 7803), and here that person is the Building Inspector of the Town of Ramapo. However, the zoning board of appeals also was properly made a party as it, too, is authorized to issue the permit in question under section 267 (subd. 5) of the Town Law. Further, as it appears that a question may arise concerning the validity of the town's zoning ordinances, in that they may conflict with subdivision (f) of section 41.34 of the Mental Hygiene Law, the petition shall not be dismissed as to the town (see Matter of Ozols v. Henley, 81 A.D.2d 670, 438 N.Y.S.2d 349). While Special Term correctly determined that petitioner could seek relief under section 40-d of the Civil Rights Law, we are of the opinion that such a claim is...