Opinion
November 12, 1974
Order, Supreme Court, New York County, entered January 2, 1973, and judgment entered January 19, 1973, unanimously modified, on the law, to the extent of striking therefrom the decretal paragraphs dismissing the complaint and substituting therefor a declaration that the New York State Urban Development Corporation or its subsidiary, UDC-Greater Rochester, Inc., validly acquired the English Road property in the Town of Greece in accordance with statutory procedures; that the project thereon may proceed in the absence of compliance with the comprehensive plan of development of the Town of Greece; that the Urban Development Corporation Act applies in communities such as the Town of Greece; that the acquisition of the land and construction of the project in the Town of Greece for the purpose of providing low income housing accommodations does not violate article XVIII of the State Constitution; and, that the findings of the New York State Urban Development Corporation or its subsidiary, UDC-Greater Rochester, Inc. with respect to the need in the area of the Town of Greece for safe and sanitary low income housing that cannot be provided by the operators of private enterprise are rational and supported; and, as so modified, the order and the judgment are affirmed, without costs or disbursements. Since this was an action for declaratory judgment, it was error, in granting summary judgment to defendants, to direct dismissal of the complaint. A declaration in favor of defendants should instead have been made. (See St. Lawrence Univ. v. Trustees of Theol. School of St. Lawrence Univ., 20 N.Y.2d 317, 325; Lanza v. Wagner, 11 N.Y.2d 317, 334, app. dsmd. 371 U.S. 74; New York Sporting Arms Assn. v. City of New York, 31 A.D.2d 793 and cases cited therein.)
Concur — McGivern, P.J., Markewich, Kupferman, Lupiano and Steuer, JJ.