Opinion
January 20, 1987
Appeal from the Supreme Court, Rockland County (Gurahian, J.).
Ordered that the order is modified, on the law, by adding a provision that the resolution of the Town of Haverstraw, effective September 12, 1983, is valid. As so modified, the order is affirmed, with one bill of costs to the defendant Division of Housing and Community Renewal, the defendant Town of Haverstraw, and the intervenors-respondents appearing separately and filing separate briefs.
On appeal, the plaintiff Gould Palisades Company contends that the September 12, 1983 resolution adopting the Emergency Tenant Protection Act (hereinafter ETPA) with regard to apartment complexes containing 120 or more dwelling units (which resolution was later corrected to regulate apartment complexes containing 100 or more dwelling units) is invalid, because the town was required to survey all housing within its borders before declaring a housing emergency with respect to apartment complexes containing at least 120 dwelling units, and because the adoption of the ETPA with respect to apartment complexes containing 120 units or more was arbitrary and capricious.
We reject the plaintiff's claims. "A declaration of emergency may be made as to any class of housing accommodations if the vacancy rate for the housing accommodations in such class within such municipality is not in excess of five percent" (McKinney's Uncons Laws of N.Y. § 8623 [a] [Emergency Tenant Protection Act § 3 (a)]; emphasis added). Under that provision, which clearly indicates that a declaration of an emergency can be made as to a certain class of housing accommodations if the vacancy rate in that class is less than 5%, there is no requirement that the vacancy rate as to all housing accommodations within the municipality be less than 5%. Thus, the plaintiff's claim that the town was required to survey all housing within its borders before declaring a housing emergency with respect to apartment complexes containing at least 120 dwelling units is without merit (see, Colonial Arms Apts. v Village of Mount Kisco, 104 A.D.2d 964; Spring Val. Gardens Assoc. v. Marrero, 100 A.D.2d 93, affd 68 N.Y.2d 627; Central Plains Co. v. City of White Plains, 48 A.D.2d 326).
We also reject the plaintiff's claim that the town's decision to regulate apartment complexes of 120 units or more (later corrected to 100 units or more) was arbitrary and capricious, and note that "[c]lassification is primarily for the Legislature, which has a wide discretion in respect thereof" (8200 Realty Corp. v. Lindsay, 60 Misc.2d 248, 264, revd 34 A.D.2d 79, revd 27 N.Y.2d 124).
However, since declaratory relief was sought, the Supreme Court erred in dismissing the complaint without declaring the validity of the resolution in question (see, Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901). Mangano, J.P., Niehoff, Lawrence and Kunzeman, JJ., concur.