Kelly's Rental, Inc. v. City of New York

• Decision Date: 29 March 1978
• Citation: 405 N.Y.S.2d 443,44 N.Y.2d 700,376 N.E.2d 915
• Parties: , 376 N.E.2d 915 KELLY'S RENTAL, INC., et al., Appellants, v. CITY OF NEW YORK et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 443

405 N.Y.S.2d 443

44 N.Y.2d 700, 376 N.E.2d 915

KELLY'S RENTAL, INC., et al., Appellants, v. CITY OF NEW YORK et al., Respondents.

Court of Appeals of New York.

March 29, 1978.

Spiros A. Tsimbinos, Kew Gardens, for appellants.

Allen G. Schwartz, Corp. Counsel, New York City (Joel A. Newman and L. Kevin Sheridan, New York City, of counsel), for respondents.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be modified, with costs, and the case remitted to Special Term for further proceedings in accordance with the memorandum herein, and as so modified, should be affirmed.

A party against whom a criminal proceeding is pending may not seek declaratory relief. (Reed v. Littleton, 275 N.Y. 150, 9 N.E.2d 814; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3001.06k.) The constitutionality and applicability of the statutory provisions alleged to have been violated are issues to be determined within the criminal proceeding itself. Having received numerous summonses to appear in Criminal Court for alleged violations of chapter 65 of the Administrative Code of the City of New York, appellants were precluded from seeking a declaration of the inapplicability of these provisions to their vehicles.

Since a declaratory judgment action does not lie, the order of the Appellate Division should be modified to strike the grant of summary judgment to respondent and the declaration in its favor. Notwithstanding the unavailability of a declaratory judgment action in this context, we are unable to grant respondent affirmative relief since respondent did not take an appeal from the determination of the Appellate Division. (People v. Consolidated Edison Co. of N. Y., 34 N.Y.2d 646, 648, 355 N.Y.S.2d 379, 380, 311 N.E.2d 511, 512; City of Rye v. Public Serv. Mut. Ins. Co., 34 N.Y.2d 470, 474, 358 N.Y.S.2d 391, 394, 315 N.E.2d 458, 460.) Upon remittal to Special Term, respondent may make a motion to dismiss the complaint if it be so advised.

BREITEL, C. J., and JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE, JJ., concur.

Order modified, with costs, and the case remitted to Supreme Court, Queens County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.