Verity v. Larkin
| Decision Date | 28 January 1963 |
| Citation | 18 A.D.2d 842,238 N.Y.S.2d 248 |
| Parties | Alexander VERITY, Respondent, v. Edward P. LARKIN et al., constituting the Town Board of the Town of Hempstead, and the Town of Hempstead, Appellants. |
| Court | New York Supreme Court — Appellate Division |
John A. Morhous, Hempstead, for appellant; George B. Schneider, Hempstead, of counsel.
Adolph J. Eckhardt, Baldwin, for respondent.
Before BELDOCK, P. J., and UGHETTA, BRENNAN, HILL and RABIN, JJ.
MEMORANDUM BY THE COURT.
In an action (a) to declare the Building Zone Ordinance of the Town of Hempstead to be unconstitutional insofar as it purports to prohibit the use of plaintiff's property for manufacturing and similar purposes; and (b) for related relief, the defendants Town of Hempstead and its Town Board appeal from an order of the Supreme Court, Nassau County, dated May 9, 1960, which denied their motion to dismiss for patent insufficiency each of the three causes of action pleaded in the amended complaint (Rules of Civil Practice, rule 106).
Order affirmed, with ten dollars costs and disbursements. Defendants, if so advised, may serve an answer within twenty days after entry of the order hereon.
The amended complaint sufficiently alleges causes of action for a declaratory judgment. A justiciable controversy is presented as to the effect of the zoning ordinance on plaintiff's property; and under such circumstances the complaint will not be dismissed for insufficiency merely because plaintiff may not be entitled to a declaration of rights as he claims them to be (Rockland Light & 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). In so holding, we express no opinion as to the merits of the controversy between the parties.
Nor is the complaint insufficient because it fails to allege that plaintiff had exhausted his administrative remedies for a variance. When issue has been joined and the facts have been established, it may appear that adequate relief may be obtained under the provisions either of the ordinance or of the Town Law. Such proof may be adduced, if it is available. All that we now decide is that the complaint sufficiently states causes of action for a declaration that the zoning ordinance is invalid insofar as it bars the use of plaintiff's property for manufacturing and similar purposes (cf. Gardner v. Le Boeuf, 8 A.D.2d 736, 187 N.Y.S.2d 92).
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