Land.Com, Inc. v Thom Kleiner

Land.Com, Inc. v Kleiner 2006 NY Slip Op 03851 [29 AD3d 744] May 16, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 19, 2006

Land.Com, Inc., et al., Appellants,
v
Thom Kleiner et al., Respondents.

—[*1]

In an action for a judgment declaring that the Zoning Code of the Town of Orangetown is unconstitutional, and that the defendants violated the Fair Housing Act (42 USC § 3601 et seq.), the plaintiffs appeal from an order of the Supreme Court, Rockland County (Nelson, J.), dated December 16, 2004, which granted the defendants' motion for summary judgment and denied their cross motion for summary judgment.

Ordered that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Rockland County, for the entry of a judgment declaring that the Zoning Code of the Town of Orangetown is constitutional, and that the defendants did not violate the Fair Housing Act.

The defendants satisfied their burden of demonstrating their entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), by submitting evidence establishing that the Zoning Code of the Town of Orangetown represented a properly-balanced and well-ordered plan for the community, and was enacted after consideration was given to regional needs and requirements (see Berenson v Town of New Castle, 38 NY2d 102, 110 [1975]; Fresh Meadow Country Club v Village of Lake Success, 158 AD2d 581, 582 [1990]; Blitz v Town of New Castle, 94 AD2d 92, 94-96 [1983]). The defendants also established that they did not violate the Fair Housing Act (cf. Suffolk Hous. Servs. v Town of Brookhaven, 109 AD2d 323, 333-338 [1985], affd 70 NY2d 122 [1987]). Since, in response, the plaintiffs failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., supra at 324), the Supreme Court correctly granted the defendants' motion (see Fresh Meadow Country Club [*2]v Village of Lake Success, supra at 582).

The plaintiffs' remaining contentions are without merit.

Since this is a declaratory judgment action, the Supreme Court should have directed the entry of a judgment declaring that the Zoning Code of the Town of Orangetown is constitutional, and that the defendants did not violate the Fair Housing Act (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Schmidt, J.P., Krausman, Mastro and Covello, JJ., concur.