Opinion
February 27, 1995
Appeal from the Supreme Court, Orange County (Carey, J.).
Ordered that the order is reversed insofar as cross-appealed from, without costs or disbursements, by deleting the provision thereof which granted that branch of the motion of the appellants-respondents which was to dismiss the plaintiffs-petitioners' cause of action in Matter No. 2 for a judgment declaring that the 1974 Zoning Ordinance of the Town of Blooming Grove is unconstitutional as applied to them, and that branch of the motion is denied; and it is further,
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
These matters are the culmination of a long series of actions and proceedings which have engaged both State and Federal courts for upward of 20 years. In the order appealed from, the Supreme Court consolidated these two matters, and, inter alia, granted that branch of the appellants-respondents' motion in Matter No. 2 which was to dismiss the cause of action of Lake Anne Realty Corp. and Marvin H. Greene (hereinafter collectively Lake Anne) which was for a declaratory judgment that the 1974 Zoning Ordinance of the Town of Blooming Grove is unconstitutional as applied to them. The court denied that branch of the appellants-respondents' motion which was to dismiss Lake Anne's cause of action for a declaratory judgment that they had a vested right to expand a nonconforming use of their property.
For the most part, we are in agreement with the reasoning of the Supreme Court and the relief granted in its order. We conclude, however, that the court erred in dismissing Lake Anne's constitutional challenge to the 1974 zoning ordinance, since their cause of action relating to their vested rights claim includes a cause of action that the 1974 zoning ordinance is unconstitutional as applied to their property (see generally, Matter of Ellington Constr. Corp. v. Zoning Bd. of Appeals, 77 N.Y.2d 114; Matter of Schoonmaker Homes — John Steinberg, Inc. v Village of Maybrook, 178 A.D.2d 722). Copertino, J.P., Pizzuto, Santucci and Florio, JJ., concur.