Opinion
December 7, 1998
Appeal from the Supreme Court, Nassau County (Alpert, J.).
Ordered that the order is modified by deleting the provision thereof granting that branch of the respondents' motion which was to dismiss the second cause of action of the complaint and substituting therefor a provision denying that branch of the respondents' motion; as so modified, the order is affirmed, without costs or disbursements, the second cause of action of the complaint is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith.
The appellant, Ernalex Construction Realty Corp. (hereinafter Ernalex), seeks to develop a 3.89 acre parcel in the City of Glen Cove ( see, Matter of Ernalex Constr. Realty Corp. v. Bellissimo, 256 A.D.2d 338 [decided herewith]). A site-plan application was initially submitted to the respondent Planning Board of the City of Glen Cove (hereinafter the Planning Board) in 1986. Thereafter, on September 12, 1989, the City Council of the City of Glen Cove added section 30.60 to its local zoning ordinance. This section, known as the "Hillside Protection Ordinance", substantially restricted development on the parcel.
By a petition pursuant to CPLR article 78, dated September 8, 1995, Ernalex sought, inter alia, to compel the Planning Board (1) to complete its review of the site-plan application under the State Environmental Quality Review Act ( see, ECL art 8 [hereinafter SEQRA]) and (2) to approve the application. In addition, Ernalex sought a declaration that the Hillside Protection Ordinance was null and void. The Supreme Court (McCabe, J.), remitted the matter to the Planning Board with directions to prepare and file a final environmental impact statement within 45 days. At the same time, the Supreme Court converted that portion of the proceeding challenging the validity of the Hillside Protection Ordinance into a declaratory judgment action ( see, CPLR 103 [c]). The court determined that the "action was timely in that the proceeding was commenced within the applicable six year period". In order "to develop the fullest record possible, and to clearly delineate and amplify the relevant issues", the court directed Ernalex to serve and file a complaint in the action.
Ernalex subsequently served a complaint stating two causes of action. The first alleged that the Hillside Protection Ordinance was null and void because it was enacted by the respondent Glen Cove City Council without complying with SEQRA. The second cause of action alleged that the ordinance was null and void because it was enacted without proper compliance with General Municipal Law § 239-m. The respondents moved to dismiss the complaint on the ground, inter alia, that it was time-barred. The Supreme Court concluded that the challenges to the Hillside Protection Ordinance "should have been brought in a proceeding pursuant to CPLR article 78, which is now time-barred". The court therefore granted the motion and dismissed the complaint as time-barred. We modify and reinstate the second cause of action.
The court, in deciding the motion to dismiss, was bound, under the doctrine of law of the case, by the order of a Justice of coordinate jurisdiction, as to the timeliness of the declaratory judgment action ( see, Martin v. City of Cohoes, 37 N.Y.2d 162, 165; Mooney v. PCM Dev. Co., 253 A.D.2d 454). This Court, however, is not bound by the prior unappealed order made in the Supreme Court ( see, Post v. Post, 141 A.D.2d 518, 519; see also, D'Guardia v. Piffath, 180 A.D.2d 630, 633-634).
The Legislature has declared that "certain classes of zoning and planning actions by a city, town or village * * * be reviewed by the county planning agency for the county in which such municipality is located * * * as an aid in coordinating such zoning actions and planning among municipalities by bringing pertinent inter-community and county-wide considerations to the attention of the aforesaid municipal agencies having jurisdiction" (General Municipal Law § 239-l).
The instant complaint alleges that the Hillside Protection Ordinance was of the type required to be referred to the Nassau County Planning Commission and that such referral did not take place ( see, General Municipal Law § 239-m). The alleged failure to comply with the referral provisions of the statute is not a mere procedural irregularity but is rather a jurisdictional defect involving the validity of a legislative act ( see, Matter of South Shore Audubon Socy. v. Board of Zoning Appeals, 185 A.D.2d 984, 985; Matter of Ferrari v. Town of Penfield Planning Bd., 181 A.D.2d 149, 152; Matter of Burchetta v. Town Bd., 167 A.D.2d 339, 341; Matter of Old Dock Assocs. v. Sullivan, 150 A.D.2d 695, 697; Weinstein Enters. v. Town of Kent, 135 A.D.2d 625; Matter of Zagoreos v. Conklin, 109 A.D.2d 281, 286; see also, Matter of Home Depot USA v. Baum, 226 A.D.2d 725, 726; cf., Matter of Voelckers v. Guelli, 58 N.Y.2d 170, 176-177; Matter of Stankavich v. Town of Duanesburg Planning Bd., 246 A.D.2d 891). Since the validity of a legislative act is raised, the issue is reviewable in a declaratory judgment action ( see, Janiak v. Town of Greenville, 203 A.D.2d 329, 331; International Paper Co. v. Sterling Forest Pollution Control Corp., 105 A.D.2d 278). The Supreme Court therefore erroneously determined that the second cause of action was untimely ( see, CPLR 213).
However, the first cause of action should be dismissed as time-barred ( see, Matter of Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 203; Matter of A M Bros. v. Waller, 150 A.D.2d 563, 564).
The respondents' remaining contentions are without merit ( see, Matter of Corbeau Constr. Corp. v. Board of Educ., 32 A.D.2d 958, 959).
Bracken, J.P., Ritter, Santucci and Altman, JJ., concur.