Opinion
January 28, 1963
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 Civ. Prac., rule 106). Order affirmed, with $10 costs and disbursements. Defendants, if so advised, may serve an answer within 20 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 City of Buffalo, 7 A.D.2d 386). 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). Beldock, P.J., Ughetta, Brennan, Hill and Rabin, JJ., concur.