We agree that a county has no right under its eminent domain power to condemn an estate in excess of that which is needed to accomplish the intended public purpose. See Hallock v. New York, 32 N.Y.2d 599, 605, 347 N.Y.S.2d 60, 64, 300 N.E.2d 430, 432 (1973); Mayo v. Windels, 255 A.D. 22, 27, 5 N.Y.S.2d 690, 693 (2d Dep't 1938), aff'd, 281 N.Y. 837, 24 N.E.2d 494 (1939). This constitutional restriction does not, however, preclude the county from negotiating and then acquiring, with the owner's consent, an estate greater than necessary to satisfy the immediate public interest.

We do agree, however, with petitioner's assertion that the taking of the parcel in fee is excessive. The power of eminent domain cannot be used to take land in excess of that needed for the particular public purpose involved ( see Hallock v State of New York, 32 NY2d 599, 605; Matter of Rafferty v Town of Colonie, 300 AD2d 719, 723; see also Matter of Kaufmann's Carousel v City of Syracuse Indus. Dev. Agency, 301 AD2d 292, 300, lv denied 99 NY2d 508). Consequently, "there may not be the acquisition of a fee when only an easement is required" ( Hallock v State of New York, 32 NY2d at 605).

In response, GLP conceded that the City's plan to construct the shaft served a public use, but asserted as an affirmative defense in its answer that the City's taking of the entire premises in fee simple was excessive and therefore arbitrary and capricious. Relying on Hallock v. State of New York ( 32 NY2d 599), GLP claimed that the City could have achieved its objectives by less intrusive means, such as an easement or by acquisition of only a portion of the parcel. GLP later interposed similar allegations in a counterclaim in its amended answer.

Plaintiffs filed a claim for damages in the Court of Claims and commenced a declaratory judgment action in Supreme Court against defendants, PASNY and the State, to challenge their legal right to take by eminent domain a full fee interest rather than simply an easement, contending that only a small portion of the sand and gravel on the land was actually required for the dam. In Hallock v State of New York ( 32 N.Y.2d 599), we held that this issue could not be resolved as a matter of law on the record then before us and remitted the case for trial. Trial was to begin on April 22, 1975, preceded by a pretrial conference that morning.

"Private property cannot be taken for public use unless it is necessary for such public use," however, "all that is required of a [condemnor] in determining the necessity for taking private property is that they act in good faith and with sound discretion" (People v Fisher, 190 NY 468, 477 [1908]; see Matter of Gyrodyne Co. of Am., Inc. v State Univ. of N.Y. at Stony Brook, 17 A.D.3d 675, 676 [2d Dept 2005], lv denied 5 N.Y.3d 716 [2005]). "[I]t is generally accepted that the condemnor has broad discretion in deciding what land is necessary to fulfill" the public purpose (Matter of PSC, LLC v City of Albany Indus. Dev. Agency, 200 A.D.3d 1282, 1287 [3d Dept 2021], lv denied 38 N.Y.3d 909 [2022]; see Gyrodyne Co. of Am., Inc., 17 A.D.3d at 676; see generally Hallock v State of New York, 32 N.Y.2d 599, 605 [1973]). Here, we conclude that the Town Board did not abuse its discretion in determining that the condemnation is necessary-even though the Town had already issued some approvals and some parts of the redevelopment have been completed-inasmuch as the full project has not been completed and further approvals will be necessary (see Butler, 39 A.D.3d at 1272).

"Although a condemnor cannot use eminent domain to take property not necessary to fulfill the public purpose, it is generally accepted that the condemnor has broad discretion in deciding what land is necessary to fulfill that purpose" (Matter of PSC, LLC v City of Albany Indus. Dev. Agency, 200 A.D.3d at 1283 [internal quotation marks and citations omitted]; see Hallock v State of New York, 32 N.Y.2d 599, 605 [1973]). In making its determination, respondent specifically sought to condemn the building parcel to conduct "surface subsidence restoration, sidewalk repairs and other ancillary and related amenities, facilities, and improvements."

We therefore agree with Supreme Court that the Pollards stated claims for reformation based upon mutual mistake or, alternatively, unilateral mistake coupled with fraud (seeWarberg Opportunistic Trading Fund, L.P. v. GeoResources, Inc., 112 A.D.3d 78, 86, 973 N.Y.S.2d 187 [1st Dept. 2013] ). The third amended third-party complaint also, as a result, stated a claim for a judgment declaring that the Pollards were entitled to a defense and indemnification under the Central Mutual policy (seeHallock v. State of New York, 32 N.Y.2d 599, 603, 347 N.Y.S.2d 60, 300 N.E.2d 430 [1973] ; Matter of Dashnaw v. Town of Peru, 111 A.D.3d 1222, 1225, 976 N.Y.S.2d 288 [3d Dept. 2013] ).

We affirm. The sole issue presented in determining a pre-answer motion to dismiss a declaratory judgment action is whether the plaintiff has set forth a cause of action for declaratory relief, without consideration as to whether he or she will ultimately succeed on the merits of the action (seeHallock v. State of New York , 32 N.Y.2d 599, 603, 347 N.Y.S.2d 60, 300 N.E.2d 430 [1973] ; Matter of Jacobs v. Cartalemi , 156 A.D.3d 635, 637, 66 N.Y.S.3d 503 [2017] ; Matter of Dashnaw v. Town of Peru , 111 A.D.3d 1222, 1225, 976 N.Y.S.2d 288 [2013] ). Pursuant to CPLR 3001, "[S]upreme [C]ourt may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed."

We also reject petitioner's contention that the taking is excessive, both in volume and in nature. " While it is well established that a condemnor cannot take, by use of the power of eminent domain, property not necessary to fulfill the public purpose, it is generally accepted that the condemnor has broad discretion in deciding what land is necessary to fulfill that purpose' " (Matter of Doyle v Schuylerville Cent. Sch. Dist., 35 AD3d 1058, 1059, lv denied 9 NY3d 804, rearg denied 9 NY3d 939; see Hallock v State of New York, 32 NY2d 599, 605). On this record, we conclude that respondent neither abused nor improvidently exercised its discretion in determining the scope of the taking (see Matter of Butler v Onondaga County Legislature, 39 AD3d 1271, 1272).

Specifically, with regard to a pre-answer motion to dismiss a declaratory judgment action, the only issue presented for consideration is “whether a cause of action for declaratory relief is set forth, not ... whether the plaintiff is entitled to a favorable declaration” (North Shore Towers Apts. Inc. v. Three Towers Assoc., 104 A.D.3d 825, 827, 961 N.Y.S.2d 504 [2013] [internal quotation marks and citation omitted]; see Hallock v. State of New York, 32 N.Y.2d 599, 603, 347 N.Y.S.2d 60, 300 N.E.2d 430 [1973] ). However, “where the court, deeming the material allegations of the complaint to be true, is nonetheless able to determine, as a matter of law, that the defendant is entitled to a declaration in his or her favor, the court may enter a judgment making the appropriate declaration” (DiGiorgio v. 1109–1113 Manhattan Ave. Partners, LLC, 102 A.D.3d 725, 728, 958 N.Y.S.2d 417 [2013] ).