Opinion
November 14, 1983
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 N.Y.2d 719; Randolph v Town of Brookhaven, 37 N.Y.2d 544, 547; Northern Westchester Professional Park Assoc. v Town of Bedford, 92 A.D.2d 267; Klein v Town of Oyster Bay, 86 A.D.2d 598). Inasmuch as this is a 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 N.Y.2d 317, app dsmd 371 U.S. 74; Siegel, N Y Prac, § 440, pp 583, 584). Titone, J.P., Lazer, O'Connor and Boyers, JJ., concur.