Opinion
July 3, 1989
Appeal from the Supreme Court, Suffolk County (Cohalan, J.).
Ordered that the order is affirmed, without costs or disbursements.
By order to show cause dated July 17, 1987, the plaintiff requested judgment declaring certain provisions of the Code of the Town of Huntington unconstitutional, which demand for relief was also set forth in the complaint. This application, in effect for summary judgment, was properly denied as premature. The record reveals that the plaintiff's application, submitted prior to service of the defendant's answer and the commencement of pretrial discovery, was made before material facts and circumstances had been fully developed. Consequently, a declaration for either party could not be made at this stage of the proceedings (see, State of New York v Trustees of Freeholders Commonalty, 99 A.D.2d 804; Wolff v 969 Park Corp., 86 A.D.2d 519; 3 Weinstein-Korn-Miller, N Y Civ Prac ¶ 3001.13). Mangano, J.P., Brown, Kunzeman and Kooper, JJ., concur.