Opinion
May 16, 1974
Appeal from the Monroe Trial Term.
Present — Marsh, P.J., Witmer, Mahoney, Goldman and Del Vecchio, JJ.
Judgment unanimously modified in accordance with memorandum and as modified affirmed, with costs to respondents. Memorandum: We agree with the determination at Trial Term that plaintiff failed to establish the unconstitutionality of the zoning ordinance for the reasons stated in his decision and the decision in Dauernheim, Inc. v. Town Board of the Town of Hempstead ( 33 N.Y.2d 468.) However, since the action is one for declaratory judgment the court should have declared the validity of the ordinance instead of dismissing the complaint (see Lanza v. Wagner, 11 N.Y.2d 317, 334; Town of Pittsford v. Gallea, 25 A.D.2d 479, affd. 18 N.Y.2d 920).