Opinion
2002-02419
December 3, 2002.
December 23, 2002.
In an action, inter alia, for a judgment declaring that Local Law, 2000, No. 5, of the Town of Monroe is illegal and unconstitutional, the plaintiff appeals from an order of the Supreme Court, Orange County (McGuirk, J.), dated March 6, 2002, which denied its motion for summary judgment on the complaint and granted the defendant's cross motion for summary judgment dismissing the complaint.
James G. Sweeney, P.C., Goshen, N.Y., for appellant.
Drake, Sommers, Loeb, Tarshis Catania, PLLC, Newburgh, N.Y. (Stephen J. Gaba of counsel), for respondent.
Before: NANCY E. SMITH, J.P., CORNELIUS J. O'BRIEN, GABRIEL M. KRAUSMAN, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Orange County, for the entry of a judgment declaring that Local Law, 2000, No. 5, of the Town of Monroe is legal and constitutional.
The plaintiff, a real estate developer, commenced this action claiming that Local Law, 2000, No. 5 of the Town of Monoroe, which conditions subdivision approval on payment of a public improvement inspection fee, is illegal and unconstitutional since it provides an open-ended and unlimited fee with no mechanism to audit the fee.
The Supreme Court properly determined that the plaintiff was barred from asserting its claim by virtue of the doctrine of res judicata since the plaintiff could have asserted this claim in the action entitled Twin Lakes Development Corp., v. Town of Monroe, 300 A.D.2d 573 [decided herewith]) (see County of Nassau v. New York State Pub. Employment Relations Bd., 151 A.D.2d 168, affd 76 N.Y.2d 579; Romano v. Astoria Fed. Sav. Loan Assn., 111 A.D.2d 751) . Both actions challenge the same condition of subdivision approval (i.e., the condition that the plaintiff pay all required fees) on the identical legal theory that the condition allegedly requires payment of open-ended and unlimit fees with no right to an audit.
Since this is an action for a declaratory judgment, we remit the matter to the Supreme Court, Orange County, for the entry of a judgment declaring that Local Law, 2000, No. 5 of the Town of Monroe is legal and constitutional (see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed, 371 U.S. 74, cert denied 371 U.S. 901).
SMITH, J.P., O'BRIEN, KRAUSMAN and RIVERA, JJ., concur.