Hollows At Loch Lea Association v Town of Clarence

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Hollows at Loch Lea Assn., Inc. v Town of Clarence 2004 NY Slip Op 04919 [8 AD3d 994] June 14, 2004 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

The Hollows at Loch Lea Association, Inc., Respondent, v Town of Clarence, Appellant.

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Appeal from an order of the Supreme Court, Erie County (Barbara Howe, J.), entered November 19, 2003. The order denied defendant's motion to dismiss the declaratory judgment action and granted plaintiff's cross motion for leave to serve an amended complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted, the complaint is dismissed and the cross motion is denied.

Memorandum: Supreme Court erred in denying defendant's motion to dismiss this declaratory judgment action and in granting plaintiff's cross motion for leave to serve an amended complaint. Plaintiff is an incorporated homeowners' association comprised of owners of various adjoining parcels of land located in defendant town. Plaintiff commenced this action seeking a declaration that Real Property Law § 339-y (1) (f), RPTL 581 (1) (c) and related local laws are unconstitutional. To encourage condominium ownership, condominium units are assessed so that their aggregate value does not "exceed the total valuation of the property were the property assessed as a parcel" (Real Property Law § 339-y [1] [b]). However, section 339-y (1) (f) and RPTL 581 (1) (c) eliminated the condominium tax benefit to homeowners who convert their home ownership to condominium ownership solely to obtain that tax benefit. Because plaintiff has not made the conversion, this action is merely a request for an advisory opinion. "The courts of New York do not issue advisory opinions for the fundamental reason that in this State '[the] giving of such opinions is not the exercise of the judicial function' " (Cuomo v Long Is. Light. Co., 71 NY2d 349, 354 [1988], quoting Matter of State Indus. Commn., 224 NY 13, 16 [1918]). Consequently, the court erred in denying defendant's motion to dismiss the declaratory judgment action (see Town of Islip v Cuomo, 147 AD2d 56, 65-66 [1989]; Bolt Assoc. v Diamonds-In-The-Roth, 119 AD2d 524, 525 [1986]; Board of Educ., Shoreham-Wading Riv. Cent. School Dist. v State of New York, 111 AD2d 505, 507-508 [1985], lv dismissed 66 NY2d 854 [1985]). Present—Wisner, J.P., Hurlbutt, Kehoe, Martoche and Lawton, JJ.