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Van Guard Hose Co. No. 1 Drill Team of Patchogue Fire Dep't v. Suffolk County Volunteer Fireman's Parade & Drill Team Captains Association

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT


December 16, 2008

IN THE MATTER OF VAN GUARD HOSE COMPANY NO. 1 DRILL TEAM OF PATCHOGUE FIRE DEPARTMENT, ETC., APPELLANT,
v.
SUFFOLK COUNTY VOLUNTEER FIREMAN'S PARADE & DRILL TEAM CAPTAINS ASSOCIATION, ET AL., RESPONDENTS.

In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review Rule 7.01E of the Official Drill Rules and Regulations of the respondent New York State Volunteer Firemen's Parade and Drill Team Captains Association, Inc., and action, inter alia, for a judgment declaring the invalidity of that rule, the petitioner appeals, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court, Suffolk County (Tanenbaum, J.), dated September 20, 2007, as, in effect, denied that branch of the petition which was to annul the rule and dismissed the cause of action for declaratory relief.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

ROBERT A. SPOLZINO, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO and CHERYL E. CHAMBERS, JJ.

(Index No. 304/06)

DECISION & ORDER

ORDERED that the order and judgment is modified, on the law, by deleting the provision thereof dismissing the cause of action for declaratory relief and substituting therefor a provision declaring that Rule 7.01E of the Official Drill Rules and Regulations of the respondent New York State Volunteer Firemen's Parade and Drill Team Captains Association, Inc., is valid; as so modified, the order and judgment is affirmed insofar as appealed from, with costs to the respondent New York State Volunteer Firemen's Parade and Drill Team Captains Association, Inc.

The petitioner, a fire department's competitive "drill team," is a member of the respondent New York State Volunteer Firemen's Parade and Drill Team Captains Association, Inc. (hereinafter the Association), an incorporated, voluntary association. In the instant hybrid proceeding and action, the petitioner challenges a particular rule promulgated by the Association. However, the petitioner failed to demonstrate any basis for annulling that rule (see CPLR 7803[3]). Accordingly, the Supreme Court properly, in effect, denied that branch of the petition which was to annul the rule. The Supreme Court, however, should not have dismissed the cause of action for declaratory relief; rather, since this is, in part, a declaratory judgment action, the Supreme Court should have included in the judgment appealed from an appropriate declaration in favor of the Association (see Lanza v Wagner, 11 NY2d 317, 324, appeal dismissed 371 US 74, cert denied 371 US 901).

SPOLZINO, J.P., COVELLO, ANGIOLILLO and CHAMBERS, JJ., concur.

20081216

© 1992-2008 VersusLaw Inc.



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