Opinion
April 22, 1996
Appeal from the Supreme Court, Nassau County (Yachnin, J.).
Ordered that the order and judgment is modified by adding thereto a provision declaring that the zoning ordinance of the defendant Town of North Hempstead is constitutional; as so modified, the order and judgment is affirmed, with costs.
There is no merit to the plaintiff's contention that the defendant Town of North Hempstead (hereinafter the Town) improperly denied the plaintiff's application to rezone the subject premises from a parking district to a business district ( see generally, Matter of Wolfe v. Town Bd., 133 A.D.2d 636). Furthermore, the Supreme Court did not err in denying the plaintiff's motion for leave to amend its complaint to assert causes of action relating to the Town's subsequent resolution rezoning the premises from a parking district to a residential district. While leave to amend a pleading should be freely given, leave should be denied where there is no merit to the new causes of action to be asserted ( see, Village Bank v. Wild Oaks Holding, 196 A.D.2d 812; Nasuf Constr. Corp. v. State of New York, 185 A.D.2d 305). The plaintiff did not show that the rezoning of the premises from a parking district to a residential district constituted a "taking" of the property ( see, de St. Aubin v. Flacke, 68 N.Y.2d 66).
We note that since this is a declaratory judgment action, the Supreme Court should have directed the entry of a declaration in favor of the Town rather than dismissal of the complaint ( see, Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).
The plaintiff's remaining contentions are without merit. Bracken, J.P., Rosenblatt, Miller and Friedmann, JJ., concur.