Ernalex Const. Realty Corp. v. City of Glen Cove

• Decision Date: 07 December 1998
• Citation: 256 AD2d 336,681 N.Y.S.2d 296
• Parties: 1998 N.Y. Slip Op. 10,769 In the Matter of ERNALEX CONSTRUCTION REALTY CORP., Appellant, v. CITY OF GLEN COVE, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 296

681 N.Y.S.2d 296

1998 N.Y. Slip Op. 10,769

In the Matter of ERNALEX CONSTRUCTION REALTY CORP., Appellant, v. CITY OF GLEN COVE, et al., Respondents.

Supreme Court, Appellate Division Second Department.

Dec. 7, 1998.

Douglas E. Szulman, New York City, for appellant.

Crowe, Deegan & Dickson, Glen Cove (Kathleen Deegan Dickson, of counsel; Douglas W. Warden on the brief), for respondents.

Before BRACKEN, J.P., and RITTER, SANTUCCI and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 78, inter alia, to compel the Planning Board of the City of Glen Cove to approve a site-plan application under the State Environmental Quality Review Act, in which that portion of the proceeding challenging the validity of Glen Cove Municipal Zoning Ordinance § 30.60 was converted into an action for a judgment declaring, inter alia, that Glen Cove Municipal Zoning Ordinance § 30.60 is invalid, Ernalex Construction Realty Corp. appeals from an order of the Supreme Court, Nassau County (Alpert, J.), entered March 12, 1997, which granted the respondents' motion to dismiss the complaint and denied its cross motion for summary judgment declaring that Glen Cove Municipal Zoning Ordinance § 30.60 is invalid.

ORDERED that the order is modified by deleting the provision thereof granting that branch of the respondents' motion which was to dismiss the second cause of action of the complaint and substituting therefor a provision denying that branch of the respondents' motion; as so modified, the order is affirmed, without costs or disbursements, the second cause of action of the complaint is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith.

The appellant, Ernalex Construction Realty Corp. (hereinafter Ernalex), seeks to develop a 3.89 acre parcel in the City of Glen Cove (see, Matter of Ernalex Constr. Corp. v. City of Glen Cove, --- A.D.2d ----, 681 N.Y.S.2d 298 [decided herewith] ). A site-plan application was initially submitted to the respondent Planning Board of the City of Glen Cove (hereinafter the Planning Board) in 1986. Thereafter, on September 12, 1989, the City Council of the City of Glen Cove added § 30.60 to its local zoning ordinance. This section, known as the "Hillside Protection Ordinance", substantially restricted development on the parcel.

By a petition pursuant to CPLR article 78, dated September 8, 1995, Ernalex sought, inter alia, to compel the Planning Board (1) to complete its review of the site-plan application under the State Environmental Quality Review Act (see, ECL art. 8 [hereinafter SEQRA] ) and (2) to approve the application. In addition, Ernalex sought a declaration that the Hillside Protection Ordinance was null and void. The Supreme Court (McCabe, J.), remitted the matter to the Planning Board with directions to prepare and file a final environmental impact statement within 45 days. At the same time, the Supreme Court converted that portion of the proceeding challenging the validity of the Hillside Protection Ordinance into a declaratory judgment action (see, CPLR 103[c] ). The court determined that the "action was timely in that the proceeding was commenced within the applicable six year period". In order "to develop the fullest record possible, and to clearly delineate and amplify the relevant issues", the court directed Ernalex to serve and file a complaint in the action.

Ernalex subsequently served a complaint stating two causes of action. The first alleged that the Hillside Protection Ordinance was null and void because it was enacted by the respondent Glen Cove City Council without complying with SEQRA. The second cause of action alleged that the ordinance was null and void because it was enacted without proper compliance with General Municipal Law § 239-m. The respondents moved to dismiss the complaint on the ground, inter alia, that it was time-barred. The Supreme Court concluded that the challenges to the Hillside Protection Ordinance "should have been brought in a proceeding pursuant to CPLR article 78, which is now time-barred". The court therefore granted the motion and dismissed the complaint as time-barred. We modify and reinstate the second cause of action.

The court, in deciding the motion to dismiss, was bound, under the doctrine of law of the case, by the order of a Justice of coordinate jurisdiction, as to the timeliness of the declaratory judgment action (see, Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867; Mooney v. PCM Development Co., --- A.D.2d ----, 675 N.Y.S.2d 316 [2d Dept.1998] ). This court, however, is not bound by the prior unappealed order made in the Supreme Court (see, Post v. Post, 141 A.D.2d 518, 519, 529 N.Y.S.2d 341; see also, D'Guardia v. Piffath, 180 A.D.2d 630, 633-634, 579 N.Y.S.2d 447).

The Legislature has declared that "certain classes of zoning and planning actions by a city, town or village * * * be reviewed by the county planning...