Sherman v. Town of Rhinebeck

Decision Date03 August 1987
Citation133 A.D.2d 77,518 N.Y.S.2d 424
PartiesAlbert SHERMAN, et al., Appellants, v. TOWN OF RHINEBECK etc., et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Richard I. Cantor, Poughkeepsie, for appellants.

Bernard Kessler, Hyde Park, for respondents.

Before BRACKEN, J.P., and BROWN, RUBIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, for a judgment declaring that the 1975 Zoning Ordinance of the Town of Rhinebeck is invalid, the plaintiffs appeal from (1) an order of the Supreme Court, Dutchess County (Beisner, J.), dated February 11, 1986, which directed both parties to submit further evidence on the issue of the validity of a 1971 Local Law, and (2) an order of the same court, dated April 21, 1986, which denied their motion for partial summary judgment.

ORDERED that the appeal taken as of right from the order dated February 11, 1986, is dismissed, as it does not affect a substantial right of the appellants (CPLR 5701[a][2][v] ); and it is further,

ORDERED that the order dated April 21, 1986, is affirmed; and it is further,

ORDERED that the respondents are awarded one bill of costs.

In support of their motion for partial summary judgment, the plaintiffs made a prima facie showing that the Zoning Ordinance enacted by the Town of Rhinebeck pursuant to Town Law article 16 was invalid. Section 620 of Article VI of the 1975 Zoning Ordinance expressly repealed the zoning regulations embodied in Local Laws, 1971, No. 1 of the Town of Rhinebeck, which had been previously enacted pursuant to Municipal Home Rule Law article 2. However, a Local Law may not be repealed or amended by an ordinance (see, Matter of Lynch v. O'Leary, 166 Misc. 567, 571, 2 N.Y.S.2d 588; 1976 Atty. Gen. [Inf Opns] 127). Both the 1971 Local Law and the 1975 Zoning Ordinance purport to cover the whole subject matter of zoning in the Town of Rhinebeck and each piece of legislation was plainly intended to furnish the only law upon that subject, as evidenced by article one of both the 1971 Local Law and the 1975 Zoning Ordinance. Consequently, the plaintiffs contend that there is no room for reconciliation, rendering the provisions of the 1975 Zoning Ordinance unenforceable.

In opposition to the plaintiffs' motion, the defendants proffered evidence that the Town enacted the 1975 Zoning Ordinance and repealed Local Law No. 1 because officials were of the belief that the 1971 Local Law was invalid due to procedural irregularities in its enactment, i.e., there was no compliance with the notice provisions of Town Law §§ 264 and 265. The defendants argue that the 1975 Ordinance is enforceable, because the unenforceable and invalid provisions of Local Law No. 1 of 1971 cannot supersede the provisions of the 1975 Zoning Ordinance.

Summary judgment is a drastic remedy which should not be granted where there is any doubt about the existence of a triable issue of fact (see, Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141, 385 N.E.2d 1068; Cohen v. Herbal Concepts, 63 N.Y.2d 379, 482 N.Y.S.2d 457, 472 N.E.2d 307; Sacks v. Weiss, 122 A.D.2d 937, 505 N.Y.S.2d 966, lv. dismissed 68 N.Y.2d 997, 510 N.Y.S.2d 1028, 503 N.E.2d 125). Here, Special Term properly found that the defendants submitted sufficient evidence to raise a triable issue of fact with regard to the validity of the 1971 Local Law and that a determination of the validity of the 1975 Zoning Ordinance can only be rendered after a determination of the validity of the 1971 Local Law. In resolving the latter issue, we note that the 1976 amendment to the Municipal Home Rule Law (L.1976, ch. 365, § 1), which permits local law to supersede the Town Law in matters of zoning (see, Municipal Home Rule Law § 10[1][ii][d][3]; Matter of Sherman v. Frazier, 84 A.D.2d 401, 446 N.Y.S.2d 372; North Bay Assoc. v. Hope, 116 A.D.2d 704, 497 N.Y.S.2d 757, lv. denied 68 N.Y.2d 603, 506 N.Y.S.2d 1026, 497 N.E.2d 706; cf., Matter of Schilling v. Dunne, 119 A.D.2d 179, 186-187, 506 N.Y.S.2d 179), may not be applied retroactively to legitimitize an earlier conflicting local law (Matter of Helfant v. Town of Brookhaven, 65 A.D.2d 623, 409 N.Y.S.2d 529). Prior to the 1976 amendment, a town could validly enact zoning regulations by a local law, pursuant to the Municipal Home Rule Law, provided the local law was not inconsistent with the provisions of the...

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3 cases
  • People v. Urena
    • United States
    • New York Criminal Court
    • November 16, 2016
    ...Edison Co. of N.Y. v. Town of Red Hook, 60 N.Y.2d 99, 105, 468 N.Y.S.2d 596, 456 N.E.2d 487 [1983].3 see Sherman v. Town of Rhinebeck, 133 A.D.2d 77, 518 N.Y.S.2d 424 [2d Dept.1987].4 Zorn v. Howe, 276 A.D.2d 51, 716 N.Y.S.2d 128 [3d Dept.2000].5 Ba Mar v. County of Rockland, 164 A.D.2d 605......
  • James v. Stark
    • United States
    • New York Supreme Court — Appellate Division
    • May 26, 1992
    ...judgment (see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387; Sherman v. Town of Rhinebeck, 133 A.D.2d 77, 518 N.Y.S.2d 424). ...
  • Bhatti v. Roche
    • United States
    • New York Supreme Court — Appellate Division
    • May 31, 1988
    ...remedy which should not be granted where there is any doubt about the existence of a triable issue of fact" ( Sherman v. Town of Rhinebeck, 133 A.D.2d 77, 78, 518 N.Y.S.2d 424). The Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint. There exi......

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