Mangicapre v. Town of Hempstead — 97 A.D.2d 788

Majority

p. 788

Anthony F. Mangicapre et al., Appellants, v Town of Hempstead, Respondent.

In an action to declare the Building Zone Ordinance of the Town of Hempstead illegal, unconstitutional, and void, plaintiffs appeal from a judgment of the Supreme Court, Nassau County (Balletta, J.), dated October 12,1982, which dismissed their complaint. Judgment modified, on the law, by deleting the provision dismissing the complaint and substituting therefor a provision declaring that the ordinance, as applied to plaintiffs’ properties, is valid and constitutional. As so modified, judgment affirmed, without costs or disbursements. Special Term correctly held that the current zoning of the subject properties is in accordance with a comprehensive plan and is neither confiscatory nor discriminatory (see Matter of Mahoney v O’Shea Funeral Homes, 45 NY2d 719 ; Randolph v Town of Brookhaven, 37 NY2d 544 , 547; Northern Westchester Professional Park Assoc, v Town of Bedford, 92 AD2d 267 ; Klein v Town of Oyster Bay, 86 AD2d 598 ). Inasmuch as this is a

p. 789

declaratory judgment action, however, the appropriate procedural disposition is to make a declaration in defendant’s favor, rather than to dismiss the complaint (see, e.g., Lanza v Wagner, 11 NY2d 317 , app dsmd 371 US 74 ; Siegel, NY Prac, § 440, pp 583, 584). Titone, J. P., Lazer, O’Connor and Boyers, JJ., concur.

Cases cited

Mahoney v. O'Shea Funeral Homes, Inc. 45 NY2d 719 N.Y. 1978-07-11 p. 788
Randolph v. Town of Brookhaven 37 NY2d 544 N.Y. 1975-10-21 at 547 p. 788
Northern Westchester Professional Park Associates v. Town of Bedford 92 AD2d 267 N.Y. App. Div. 1983-03-21 p. 788
Klein v. Town of Oyster Bay 86 AD2d 598 N.Y. App. Div. 1982-01-18 p. 788
Lanza v. Wagner 11 NY2d 317 N.Y. 1962-05-17 p. 789