You are here: / / IN THIS HYBRID ARTICLE 78-DECLARATORY JUDGMENT ACTION, THE PORTIONS OF...
, , , , ,

IN THIS HYBRID ARTICLE 78-DECLARATORY JUDGMENT ACTION, THE PORTIONS OF THE PETITION WHICH SOUGHT A DECLARATION THAT AMENDMENTS TO THE ZONING CODE ARE ILLEGAL AND RELATED DAMAGES SHOULD NOT HAVE BEEN DISMISSED, SUA SPONTE, IN THE ABSENCE OF A SPECIFIC DEMAND FOR DISMISSAL (SECOND DEPT).

The Second Department determined that the zoning code provisions enacted by the village board of trustees, which concerned the maximum floor space and coverage on residential lots, were consistent with the village’s comprehensive plan and properly enacted. The Second Department further found that the requirements of the State Environmental Quality Review Act (SEQRA) were met. However, the portions of the petition which sought declaratory relief and related damages should not have been summarily dismissed along with the portions which sought Article 78 relief because no demand for dismissal of the declaratory relief portions had been made:

… [I]n the absence of a dispositive motion addressed to the fifth, sixth, seventh, and eighth causes of action, which sought declaratory relief and damages not in the nature of CPLR article 78 relief, the Supreme Court should not have, in effect, dismissed those causes of action. “In a hybrid proceeding and action, separate procedural rules apply to those causes of action which are asserted pursuant to CPLR article 78, on the one hand, and those to recover damages and for declaratory relief, on the other hand. The Supreme Court may not employ the summary procedure applicable to a CPLR article 78 cause of action to dispose of causes of action to recover damages or seeking a declaratory judgment” … . “Thus, where no party makes a request for a summary determination of the causes of action which seek to recover damages or declaratory relief, it is error for the Supreme Court to summarily dispose of those causes of action” … . Matter of Bonacker Prop., LLC v Village of E. Hampton Bd. of Trustees, 2019 NY Slip Op 00432, Second Dept 1-23-19

 

You might also like
WRONGFUL DEATH VERDICT AWARDING ZERO DAMAGES FOR LOSS OF PARENTAL GUIDANCE NOT AGAINST THE WEIGHT OF THE EVIDENCE.
BECAUSE THE B MISDEMEANOR CARRIES DEPORTATION AS A POTENTIAL PENALTY, DEFENDANT IS ENTITLED TO A JURY TRIAL (SECOND DEPT).
NEW YORK WOULD REMAIN “HOME STATE” FOR A CUSTODY MATTER IF FATHER WRONGFULLY PREVENTED CHILDREN FROM RETURNING TO NEW YORK FROM BANGLADESH IN THE SIX MONTHS BEFORE THE FILING OF THE PETITION.
Failure to Inform Defendant of His Right to Counsel for an Appeal Taken by the People Deprived Defendant of that Right
SNOW-REMOVAL COMPANY NOT LIABLE TO PLAINTIFF BECAUSE PLAINTIFF WAS NOT A PARTY TO THE SNOW-REMOVAL CONTRACT; NO NEED FOR DEFENDANT TO ADDRESS ESPINAL EXCEPTIONS IN ITS SUMMARY JUDGMENT MOTION IF THE EXCEPTIONS ARE NOT PLED BY THE PLAINTIFF.
DEFENDANT TORTIOUSLY INTERFERED WITH PLAINTIFF’S CONTRACT BUT DID NOT TORTIOUSLY INTERFERE WITH PLAINTIFF’S BUSINESS RELATIONS OR ENGAGE IN UNFAIR COMPETITION; THE ELEMENTS OF THE THREE CAUSES OF ACTION EXPLAINED (SECOND DEPT).
STATING THE WRONG DATE FOR THE ALLEGED NEGLIGENCE IN THE NOTICE OF INTENTION TO FILE A CLAIM RENDERED THE NOTICE JURISDICTIONALLY DEFECTIVE; THE NOTICE THEREFORE DID NOT EXTEND THE 90-DAY PERIOD FOR FILING A CLAIM, RENDERING THE CLAIM FILED MORE THAN A YEAR AND A HALF LATER UNTIMELY; THE DENTAL MALPRACTICE ACTION WAS PROPERLY DISMISSED; THERE WAS AN EXTENSIVE DISSENT (SECOND DEPT).
INSURER WAIVED THE CONTRACTUAL ISSUE WHETHER PETITIONER WAS A PASSENGER IN THE CAR BY NOT SEEKING A STAY OF ARBITRATION, THEREFORE THE ARBITRATOR EXCEEDED HIS POWERS BY FINDING PETITIONER WAS NOT A PASSENGER AT THE TIME OF THE HIT AND RUN ACCIDENT (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEFENDANT SHOULD NOT HAVE BEEN ARRAIGNED ON A SPECIAL INFORMATION CONCERNING... MOTHER’S APPLICATION FOR RETURN OF THE CHILD AFTER TEMPORARY REMOVAL OF...