Schultz v. City of Port Jervis
| Decision Date | 29 September 1997 |
| Citation | 242 A.D.2d 699,662 N.Y.S.2d 591 |
| Parties | , 1997 N.Y. Slip Op. 8251 Pauline SCHULTZ, et al., Appellants, v. CITY OF PORT JERVIS, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Henry J. Holley, Port Jervis, pro se and for remaining appellants.
John S. Hicks, Chester, for respondents.
Before MILLER, J.P., and SANTUCCI, GOLDSTEIN and FLORIO, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, for a judgment declaring Local Law, 1995, No. 8 of the City of Port Jervis, which amended section 158- 72(K) of the Code of the City of Port Jervis, to be unconstitutionally vague, the plaintiffs appeal from an order of the Supreme Court, Orange County (Bellantoni, J.), dated July 1, 1996, which denied their motion for summary judgment declaring the law to be unconstitutionally vague and declared the law to be valid and constitutional.
ORDERED that the order is modified, on the law and as a matter of discretion in the interest of justice, by deleting the provision thereof which declared Local Law, 1995, No. 8 of the City of Port Jervis to be valid and constitutional, and substituting therefor a provision dismissing the complaint; as so modified the order is affirmed, without costs or disbursements.
Pursuant to CPLR 3001, a court possesses the discretion to decline to render a declaratory judgment upon a proper statement of its reasons. Notwithstanding that a declaratory judgment action is the appropriate procedural vehicle to challenge the constitutionality of a statute or ordinance (see, e.g., Board of Educ. of Belmont Cent. School Dist. v. Gootnick, 49 N.Y.2d 683, 427 N.Y.S.2d 777, 404 N.E.2d 1318), in this case it is premature to attempt to determine the constitutionality of the challenged ordinance insofar as the plaintiffs may obtain adequate relief in the event that an actual controversy related to the enforcement of the ordinance may one day arise (see, James v. Alderton Dock Yards, 256 N.Y. 298, 176 N.E. 401; Cherry v. Koch, 126 A.D.2d 346, 514 N.Y.S.2d 30).
The plaintiffs contend, in the abstract, that the inclusion of the word "repair" in the ordinance renders it unconstitutionally vague. However, we find that no justiciable controversy is presented at this juncture. While the enactment is far from a model of clarity and the building inspector is imbued with broad discretion thereunder to determine whether a building permit will be required on a case by case basis, there is no indication in the record...
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