Opinion
January 29, 1985
Appeal from the Supreme Court, Monroe County, Patlow, J.
Present — Dillon, P.J., Hancock, Jr., Callahan, Denman and Green, JJ.
Judgment unanimously affirmed, without costs. Memorandum: Special Term properly treated plaintiff's motion as one for summary judgment in plaintiff's action seeking to invalidate a change of zone ordinance inasmuch as in its notice of motion plaintiff asks, as the primary relief, on the basis of the moving affidavits and the verified complaint, that the court grant a judgment "[r]eversing, annulling [and setting aside] the Town Board's resolution granting the rezoning of the subject parcel from 'R-1' (Single Family) to 'R-5' (Multiple Dwelling)." Only in the event that the primary relief is not granted does plaintiff request as an alternative that the matter be referred for a hearing. In view of the foregoing, there is no merit to plaintiff's contention, raised for the first time on the argument, that the court should have notified the parties that it was treating the motion as one for summary judgment.
On this record we agree that summary judgment was properly granted to defendant (CPLR 3212, subd [b]) declaring that the defendant town has complied with the New York State Environmental Quality Review Act and the town's Environmental Quality Review Ordinance and that the property was legally and validly rezoned by the town. The record establishes conclusively that the change of zone was entirely consistent with the Hudson Avenue Development Plan, which had been approved by the Planning Board prior to the application for rezoning, and which adopts as one of its aims the encouragement of multifamily residences and the discouragement of commercial development in the Hudson Avenue area. Likewise, it appears that the town has in all respects complied with the requirements of applicable State environmental laws as well as the local environmental ordinance.
The moving papers raise no triable questions on these or any other issues.