Town of Brookhaven v. MARIAN CHUN ENTERS., INC.

71 N.Y.2d 953 (1988)

Town of Brookhaven, Respondent, v. Marian Chun Enterprises, Inc., Appellant.

Court of Appeals of the State of New York.

Decided April 28, 1988.

Bernard Myerson for appellant.

Allen I. Sak, Town Attorney (Denise F. Molia of counsel), for respondent.

E. Thomas Boyle, County Attorney (Garrett W. Swenson, Jr., of counsel), for Alice Amrhein, as Commissioner of the Suffolk County Department of Social Services, amicus curiae.

Jerrold M. Levy for Westchester County Legal Services, Inc., amicus curiae.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur in memorandum.

*954MEMORANDUM.

The order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

Since 1983, the Suffolk County Department of Social Services has provided temporary emergency housing for some of the county's homeless families at the Lakeview Lodge Motel and similar accommodations. In 1984, the Town of Brookhaven commenced this action against defendant Lakeview Lodge Motel, to permanently enjoin the motel from operating a lodging or rooming house without the appropriate certificate of occupancy. In March 1985, the Town Board amended the Code of the Town of Brookhaven to limit motel accommodation to "transient travelers." Supreme Court dismissed the action on the merits; the Appellate Division reversed, granting judgment for plaintiff. We granted leave to appeal, granted the motion of the Commissioner of Social Services of Suffolk County to appear amicus curiae, and authorized a submission by Westchester Legal Services pursuant to section 500.4 (h) of the Rules of the Court of Appeals (22 NYCRR 500.4 [h]).

The interests of neither the Commissioner of Social Services of Suffolk County nor any representative of the homeless aid recipients occupying the Lakeview Lodge Motel have been heard below. As the action is presently framed, their interests might be inequitably affected by the outcome of the action (CPLR 1001 [a]; City of New York v Long Is. Airports Limousine Serv. Corp., 48 N.Y.2d 469, 473; First Natl. Bank v Shuler, 153 N.Y. 163, 170; Albert C. v Joan C., 110 AD2d 803, 804). *955 Accordingly, we reverse the order of the Appellate Division, and dismiss the complaint without prejudice pursuant to CPLR 1003 (Matter of Lezette v Board of Educ., 35 N.Y.2d 272, 282).

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order reversed, etc.