(Download) "Hope N. Gardner v. R.J. Le Boeuf" by Supreme Court of New York ~ eBook PDF Kindle ePub Free
eBook details
- Title: Hope N. Gardner v. R.J. Le Boeuf
- Author : Supreme Court of New York
- Release Date : January 18, 1959
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 59 KB
Description
In an action for a judgment declaring that the Building Zone Ordinance of the Incorporated Village of Old Westbury is invalid
insofar as it restricts the appellant's property to a prescribed residential use and prevents the development of such property
for business purposes, and for other relief, the appeal is from an order granting a motion to dismiss the complaint for insufficiency
(Rules Civ. Prac., rule 106, subd. 4). The Special Term held that the complaint was deficient in that it failed to set forth
sufficient factual criteria to support the claim that the ordinance was unconstitutional and failed to allege that the appellant
had exhausted such administrative remedies for a variance as might be available to her by way of relief. Order reversed, with
$10 costs and disbursements, and motion denied. Respondents may serve an answer, if so advised, within 10 days after entry
of the order hereon. The complaint sufficiently states a cause of action for a declaratory judgment. Appellant has pleaded
the ultimate facts upon which she rests her conclusion that the ordinance should be declared unconstitutional, and is not
required to state the evidence by which they are to be proved (Civ. Prac. Act, § 241). Neither does it appear on the face
of the complaint that the ordinance or the Village Law authorizes a variance of the application of the general restrictions
imposed, or the granting of a special exception, which would permit the use of appellant's property for a purpose for which
it is reasonably adapted, and that consequently the ordinance may not be declared unconstitutional, insofar as it affects
appellant's property until an application has been made for such a variance or exception and denied (cf. People v. Calvar
Corp., 286 N. Y. 419, 421; Town of Cortlandt v. McNally, 282 App. Div. 1072; Matter of Great Neck Community School v. Dick,
3 A.D.2d 664; Levitt v. Incorporated Vil. of Sands Point, 6 A.D.2d 701, 702). When issue is joined and the facts are established,
it may appear that adequate relief may be obtained under the provisions of the ordinance or the Village Law (cf. Hammond v.
Town of Caldwell, 282 App. Div. 798). Such proof may be adduced, if it is available. All that we are deciding now is that
the complaint sufficiently states a cause of action for a declaration that the ordinance unreasonably deprives appellant of
the use of her property (cf. Levitt v. Incorporated Vil. of Sands Point, 2 A.D.2d 688; 6 A.D.2d 701, 702, supra). Nolan, P.J.,
Wenzel, Murphy and Kleinfeld, JJ., concur; Hallinan, J., dissents and votes to affirm, with the following memorandum: In addition
to the grounds stated in the opinion of the Justice at Special Term (Gardner v. Le Boeuf, 14 Misc. 2d 98), the appellant
in this case conceded that the zoning ordinance assailed is not invalid on its face, and that it may be declared confiscatory
only by assuming the validity of the allegations contained in the complaint. Accordingly, as was properly held at Special
Term, appellant had to detail what specific facts, rather than general conclusions, made the ordinance unconstitutional as
to appellant's property in view of the presumption of the validity attached to the ordinance (cf. Wiggins v. Town of Somers,
4 N.Y.2d 215, 218). [ 14 Misc. 2d 98. ]
 "Hope N. Gardner v. R.J. Le Boeuf" by Supreme Court of New York ~ eBook PDF Kindle ePub Free){kind=link}