Mandis v. Gorski

Decision Date09 December 1965
Citation24 A.D.2d 181,265 N.Y.S.2d 210
PartiesApplication of George P. MANDIS, as Treasurer of the Greater Buffalo Hotel Association, Airway Hotels, Inc., Kevin Kennedy, and Hilton Hotels Corporation, Respondents, for a Judgment under Article 78 of the Civil Practice Law and Rules, v. Chester C. GORSKI, President, and Joseph F. Dudzick, Stanley M. Makowski, et al., Constituting the Common Council of the City of Buffalo, Appellants, and Benderson Development Company, Inc., Intervenor.
CourtNew York Supreme Court — Appellate Division

Robert E. Casey, Jr., Buffalo, for appellants (Joseph A. Nicosia, Buffalo, of counsel).

Thomas E. O'Brien, Buffalo, for respondents.

Hellerer, Cuomo & Vaccaro, Buffalo, for intervenor (Robert J. Hellerer, Buffalo, appeared).

Before WILLIAMS, P. J., and BASTOW, GOLDMAN, HENRY and DEL VECCHIO, JJ.

DEL VECCHIO, Justice.

Respondent, Buffalo Common Council, pursuant to leave granted by Special Term, appeals from an order denying a motion to dismiss the petition in an Article 78 proceeding brought to review its action in granting the intervenor permission to erect a motel or hotel in excess of three stories or forty feet in height in a C2 District. Permission was granted pursuant to Section 19(B)(1a) of Chapter LXX of the Buffalo Zoning Ordinance, which authorized the erection of hotels, motels, and office buildings in a C2 District in excess of the three-story, forty-feet height limitation otherwise applicable to buildings in such districts 'as approved individually by the Common Council under such terms and conditions as the council may prescribe.' Petitioners sought an order annulling the permission granted by the Council to the intervenor and also declaring that Section 19(B)(1a) of Chapter LXX of the Buffalo Zoning Ordinance is null and void, and for such other and further relief as may be just and proper.

Without serving an answer, the Common Council moved to dismiss the petition on the following grounds: (1) the proceeding was not commenced within thirty days after passage of the resolution of permission as allegedly required by General City Law, § 82; (2) Article 78 is not a proper proceeding to test the validity of a zoning ordinance; (3) from the pleading it does not appear that petitioners are aggrieved parties entitled to maintain this proceeding; and (4) the petition fails to state facts sufficient to constitute a cause of action.

We consider first the contention that petitioners may not attack the validity of the Buffalo Zoning Ordinance in this proceeding. No claim is being made as to the unreasonableness of the Council's action in granting a special exception, which would clearly be reviewable in an Article 78 proceeding (Matter of Lemir Realty Corp. v. Larkin, 11 N.Y.2d 20, 24 226 N.Y.S.2d 374, 376, 181 N.E.2d 407, 408; Matter of Rothstein v. County Operating Co., 6 N.Y.S.2d 728, 729, 185 N.Y.S.2d 813, 814, 158 N.E.2d 507); the challenge is based solely upon lack of jurisdiction to grant the exception occasioned by the fact--as petitioners claim--that the section of the Zoning Ordinance authorizing the Council to grant exceptions from height restrictions for motels, hotels, and office buildings in C2 Districts is invalid. The section in question came into the Buffalo Zoning Ordinance as the result of an amendment to the ordinance enacted in 1961. In challenging the validity of the amendment petitioners are seeking a review of an exercise of the Buffalo Common Council's legislative function, a review not available through an Article 78 proceeding (Matter of Neddo v. Schrade, 270 N.Y. 97, 103, 200 N.E. 657, 659; Matter of Paliotto v. Cohalan, 6 A.D.2d 886, 177 N.Y.S.2d 553, affd. 8 N.Y.2d 1065, 207 N.Y.S.2d 281, 170 N.E.2d 413), but for which an action to declare the invalidity of the ordinance may properly be maintained (Vernon Park Realty v. City of Mount Vernon 307 N.Y. 493, 121 N.E.2d 517; Dowsey v. Village of Kensington, 257 N.Y. 221, 177 N.E. 427, 86 N.L.R. 642).

In view of CPLR 103(c), the court will not dismiss this litigation because of petitioners' error in their choice of procedures. This section provides that 'If a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosectuion.' It was designed to prevent dismissals for errors in form alone and to allow a court which has proper jurisdiction of the parties to permit the continuation of litigation without regard for technical defects. Among the errors to which it was intended to apply were those regarding the choice between an action and a special proceeding as the appropriate device for securing judicial relief (Weinstein-Korn-Miller, New York Civil Practice, Vol. 1, p103.08). We will therefore regard the present proceeding as an action for a judgment declaring the invalidity of Section 19(B)(1a) of Chapter LXX of the Buffalo Zoning Ordinance.

In this posture of the case it becomes unnecessary to consider the claims that the litigation was not commenced witin the period prescribed by General City Law, § 82, and that petitioners are not 'persons * * * aggrieved' within that section, which relates expressly to proceedings instituted pursuant to Article 78 of the Civil Practice Law and Rules. There can be no doubt that the litigation was timely commenced when regarded as a declaratory judgment action, and that the allegations of the petition, liberally construed (CPLR 3026), indicate that at least one petitioner (Kennedy) has property rights which may be so directly affected by the special exception granted that an action challenging the zoning legislation may be maintained (Buckley v. Fasbender, 281 App.Div. 985, 121 N.Y.S.2d 3).

As to the claim that the petition fails to state a cause of action: Insofar as petitioners seek a declaration concerning the validity of a legislative enactment, it is clear that the petition sets forth a situation which is appropriate for implementation of the declaratory judgment device. (Vernon Park Realty v. City of Mount Vernon, 307 N.Y. 493, 121 N.E.2d 517; Dowsey v. Village of Kensington, 257 N.Y. 221, 177 N.E. 427, 86 A.L.R. 642; Verity v. Larkin, 18 A.D.2d 842, 238 N.Y.S.2d 248.) Moreover, there is no reason evident, such as the availability of another remedy, why declaratory relief should not be granted. (See Gaynor v. Rockefeller, 15 N.Y.2d 120, 256 N.Y.S2d 584, 204 N.E.2d 627.) In these circumstances, the court should not dismiss the complaint but should retain jurisdiction and declare the rights of the parties (Hoffman v. City of Syracuse, 2 N.Y.2d 484, 487, 161 N.Y.S.2d 111, 112, 141 N.E.2d 605, 606; Rockland Light and Power Co. v. City of New York 289 N.Y. 45, 51, 43 N.E.2d 803, 806, Baldwin v. City of Buffalo, 7 A.D.2d 386, 183 N.Y.S.2d 576).

Furthermore, we are of the opinion that the rights rights of the parties to the present litigation may properly be determined in this court and at this time, since we are satisfied that petitioners cannot succeed in their request for a declaration that a portion of the Buffalo Zoning Ordinance is invalid. The statement in Civil Service Forum v. New York City Transit Auth., 4 A.D.2d 117, 163 N.Y.S.2d 476, affd. 4 N.Y.2d 866, 174 N.Y.S.2d 234, 150 N.E.2d 705, is particulary appropriate:

'We consider that a proper case for a declaratory judgment is presented, and it may be that orderly procedure should require the service of answers, and a determination of the merits of the controversy thereafter upon appropriate motions. Cf. Strauss v. University of State of New York, 282 App.Div. 593, 595, 125 N.Y.S.2d 821, 824. We are reluctant, however, to compel the respondents to resort to what would appear, in this case, to be unnecessary procedure. The conceded facts are before us now, as fully and as completely as though answers had been served and...

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