Opinion
Argued February 2, 2001.
March 5, 2001.
In an action, inter alia, for a judgment declaring that the defendants David E. Eagan and Mary Ann McCaffrey are prohibited from operating a horse farm on their property, (1) the defendants David E. Eagan and Mary Ann McCaffrey appeal from so much of an order of the Supreme Court, Suffolk County (Henry, J.), dated January 27, 1999, as granted those branches of the plaintiffs' motion which were to enjoin them from boarding horses on their property and to limit the number of horses allowed on the property, and denied, as academic, their cross motion to dismiss the complaint, and (2) the plaintiffs appeal from so much of an order of the same court, dated September 27, 1999, as, upon granting their motion for reargument of their prior motion for a preliminary injunction, denied the motion in its entirety. The appeal by the defendants David E. Eagan and Mary Ann McCaffrey brings up for review so much of the order, dated September 27, 1999, as, upon granting their cross motion for reargument, adhered to so much of the prior determination as denied, as academic, their cross motion to dismiss the complaint insofar as asserted against them.
Battle Fowler, LLP, New York, N.Y. (Michael J. Malone, Paul A. Straus, and Carolyn Byrne of counsel), for appellants on Appeal No. 1 and respondents on Appeal No. 2.
Martin S. Rapaport, New York, N.Y. (Karen F. Neuwirth of counsel), for respondents on appeal No. 1 and appellants on Appeal No. 2.
Before: WILLIAM D. FRIEDMANN, J.P., ANITA R. FLORIO, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the appeal from so much of the order dated January 27, 1999, as granted, in part, the plaintiffs' motion for a preliminary injunction, is dismissed, as that portion of the order was superseded by so much of the order dated September 27, 1999, as, upon granting the plaintiffs' motion for reargument, denied their motion in its entirety; and it is further,
ORDERED that the order dated September 27, 1999, is modified, on the law, by deleting the provision thereof adhering to so much of the order dated January 27, 1999, as denied the cross motion of the defendants David E. Eagan and Mary Ann McCaffrey and substituting therefor a provision granting the cross motion; as so modified, the order dated September 27, 1999, is affirmed insofar as reviewed, the complaint is dismissed insofar as asserted against the defendants David E. Eagan and Mary Ann McCaffrey, the order dated January 27, 1999, is modified accordingly, and the action against the remaining defendants is severed; and it is further,
ORDERED that the defendants David E. Eagan and Mary Ann McCaffrey are awarded one bill of costs.
The plaintiffs own real property which adjoins a parcel of farmland in East Hampton owned by the defendants David E. Eagan and Mary Ann McCaffrey (hereinafter the defendants). In this declaratory judgment action the plaintiffs seek to enjoin the defendants from using the property as a horse farm. The defendants sought and obtained a special use permit from the Planning Board of East Hampton to use their property as a horse farm.
The complaint must be dismissed. The proper method to obtain review of a determination of a Town Planning Board is to commence a CPLR article 78 proceeding (see, Town Law § 282). Indeed, the plaintiffs commenced a proceeding for that relief (see, Matter of Herzog v. Planning Board of East Hampton, 721 A.D.2d 288 [decided herewith]).