Opinion
June 18, 1979
In an action to declare the zoning ordinance of the Village of East Hills unconstitutional as it applies to plaintiff's real property, plaintiff appeals from a judgment of the Supreme Court, Nassau County, entered September 13, 1978, which, after a nonjury trial, dismissed the complaint. Judgment modified, on the law, by deleting therefrom the provision dismissing the complaint, and substituting therefor a provision declaring that the ordinance under review is not unconstitutional or confiscatory as applied to plaintiff's property. As so modified, judgment affirmed, with costs to defendant. Inasmuch as it is improper in a declaratory judgment action to dismiss the complaint, even though the plaintiff is not entitled to the declaration sought (Lanza v Wagner, 11 N.Y.2d 317, 334, app dsmd 371 U.S. 74), we declare that the ordinance is not unconstitutional or confiscatory as applied to plaintiff's property. Plaintiff did not establish that he is precluded by the ordinance from the use of the property for any purpose to which it may be reasonably adapted (see Williams v Town of Oyster Bay, 32 N.Y.2d 78). Mollen, P.J., Hopkins, Rabin and Martuscello, JJ., concur.