Nicholson v. Inc.

• Court: New York Supreme Court Appellate Division
• Writing for the Court: PETER B. SKELOS
• Citation: 112 A.D.3d 893,2013 N.Y. Slip Op. 08600,978 N.Y.S.2d 288
• Parties: Michael NICHOLSON, etc., et al., respondents, v. INCORPORATED VILLAGE OF GARDEN CITY, et al., appellants.
• Decision Date: 26 December 2013

112 A.D.3d 893
978 N.Y.S.2d 288
2013 N.Y. Slip Op. 08600

Michael NICHOLSON, etc., et al., respondents,
v.
INCORPORATED VILLAGE OF GARDEN CITY, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 26, 2013.

[978 N.Y.S.2d 289]

Cullen and Dykman LLP, Garden City, N.Y. (Peter J. Mastaglio, Justin F. Capuano, and Sardar M. Agadullah of counsel), for appellants.

Michael Nicholson, Garden City, N.Y., and Diana L. Nicholson, Garden City, N.Y., respondents pro se (one brief filed).

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SANDRA L. SGROI, JJ.

In a hybrid action for a judgment declaring, among other things, that Local Law 4–2009 of the Village of Garden City is unconstitutional and proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of Incorporated Village of Garden City dated August 13, 2009, resolving to enact Local Law 4–2009 of the Village of Garden City, the defendants/respondents appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered March 27, 2012, as denied that branch of their motion which was for summary judgment, in effect, declaring that Local Law 4–2009 of the Village of Garden City is not unconstitutional, and granted that branch of the plaintiffs/petitioners' cross motion which was for summary judgment, in effect, declaring that Local Law 4–2009 of the Village of Garden City is unconstitutional.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the appellants' motion which was for summary judgment, in effect, declaring that Local Law 4–2009 of the Village of Garden City is not unconstitutional is granted, that branch of the plaintiffs/petitioners' cross motion which was for summary judgment, in effect, declaring that Local Law 4–2009 of the Village of Garden City is unconstitutional is denied, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings, including the entry of a judgment, inter alia, declaring that Local Law 4–2009 of the Village of Garden City is not unconstitutional.

Local Law 4–2009 of the Village of Garden City (hereinafter the local law) rezoned corner lots on four avenues in the Central Section of the Village of Garden City from R–20, a residential zoning classification requiring a minimum lot size of 20,000 square feet, to R–20C, a residential zoning classification prohibiting subdivision unless the resulting corner lot has a minimum lot size of 40,000 square feet. The local law applies to a 62,500–square–foot corner lot owed by the plaintiffs/petitioners (hereinafter the plaintiffs).

Initially, since the plaintiffs are mounting a facial attack on the constitutionality of the local law by virtue of the declaratory judgment causes of action set forth in the complaint/petition, rather than challenging the local law “as applied” to their property, the challenge is ripe for review ( see Yee v. Escondido, Cal., 503 U.S. 519, 533–534, 112 S.Ct. 1522, 118 L.Ed.2d 153; Levitt v. Incorporated Vil. of Sands Point, 6 N.Y.2d 269, 189 N.Y.S.2d 212, 160 N.E.2d 501; cf. Town of Islip v. Zalak, 165 A.D.2d 83, 95–96, 566 N.Y.S.2d 306).

We disagree with the Supreme Court's determination that the local law is unconstitutional. Legislative enactments are entitled to an “exceedingly strong presumption of constitutionality” (

[978 N.Y.S.2d 290]

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