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Tomasulo v. Village of Freeport

Supreme Court of New York, Second Department

June 28, 2017

Robert Tomasulo, appellant,
v.
Village of Freeport, respondent; William M. Goodhue, Jr., nonparty- appellant. Index No. 1902/15

          Mark W. Greenfest, Island Park, NY, for appellants.

          Harris Beach, PLLC, Uniondale, NY (Kadion D. Henry of counsel), for respondent.

          CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         In a proceeding pursuant to CPLR article 78, which was converted into an action, inter alia, for a judgment declaring that sections 171-1 and 210-3 of the Freeport Village Code are unconstitutional, the plaintiff and nonparty William M. Goodhue, Jr., appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Brown, J.), dated June 22, 2015, as, upon, in effect, deeming the petition to be a complaint and the defendant's opposition papers to be a motion for summary judgment dismissing the complaint, in effect, granted the defendant's motion for summary judgment dismissing the complaint.

         ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

         The plaintiff, Robert Tomasulo (hereinafter the Tenant), appearing pro se, commenced this CPLR article 78 proceeding against the Village of Freeport seeking, inter alia, a judgment declaring that sections 171-1 and 210-3 of the Freeport Village Code are unconstitutional. The Tenant contended that he lived in a single-family home with the owner of the property, nonparty William Goodhue, and two other unrelated individuals. The Tenant asserted, among other things, that the definition of "family" contained in the Village Code was unconstitutional and that it rendered his tenancy illegal. The Tenant further asserted that the Village had taken the position that his tenancy was illegal and had commenced criminal proceedings against the owner of the property. The Tenant alleged that the Village used the criminal proceedings to pressure the owner of the property to evict him from the property and that the owner had, in fact, commenced eviction proceedings against him.

         The Village submitted opposition papers arguing that the Tenant lacked standing to seek a declaration as to the constitutionality of the disputed provisions of the Village Code because he had not been injured or threatened with injury as a result of those provisions. The Village also contended that the Tenant failed to state a cause of action for declaratory relief since he had failed to adequately allege the existence of a justiciable controversy.

         In the order appealed from, the Supreme Court exercised its authority pursuant to CPLR 103(c) to convert the proceeding into an action and, in effect, deemed the petition to be a complaint, and the opposition papers to be a motion for summary judgment dismissing the complaint. The court then, inter alia, in effect, granted the Village's motion for summary judgment dismissing the complaint on the ground that the Tenant lacked standing to seek the requested declaration and failed to set forth a cause of action for declaratory relief. We reverse the order insofar as appealed from.

         The CPLR provides that a court "may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed" (CPLR 3001). "The justiciable controversy' upon which a declaratory judgment may be rendered requires not only that the plaintiffs in such an action have an interest sufficient to constitute standing to maintain the action but also that the controversy involve present, rather than hypothetical, contingent or remote, prejudice to plaintiffs" (American Ins. Assn. v Chu, 64 N.Y.2d 379, 383; see Touro Coll. v Novus Univ. Corp., 146 A.D.3d 679, 679-680; Schulz v Cuomo, 133 A.D.3d 945, 947; see also 5-3001 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 3001.03).

         Here, contrary to the Supreme Court's conclusion, the Tenant has presented a justiciable controversy which he has standing to maintain (see McMinn v Oyster Bay, 105 A.D.2d 46, affd 66 N.Y.2d 544). The Tenant demonstrated a "threatened injury to [his] protected right" to his tenancy in the owner's house (Matter of Daniel C., 99 A.D.2d 35, 42, affd 63 N.Y.2d 927; see People v Parker, 41 N.Y.2d 21, 24; Oriental Blvd. Co. v Heller, 27 N.Y.2d 212, 220; Town of Islip v Cuomo, 147 A.D.2d 56, 67), such that he has adequately shown "an interest sufficient to constitute standing to maintain the action" (American Ins. Assn. v Chu, 64 N.Y.2d at 383; see McMinn v Oyster Bay, 105 A.D.2d at 50). Furthermore, contrary to the Village's contention, the allegations in the converted complaint adequately allege the existence of an actual controversy between the Tenant and the Village such that this case "involve[s] present, rather than hypothetical, contingent or remote, prejudice to [him]" (American Ins. Assn. v Chu, 64 N.Y.2d at 383; see New York Pub. Interest Research Group, Inc. v Carey, 42 N.Y.2d 527; see also 5-3001 Weinstein-Korn-Miller, NY Civ Prac ¶ 3001.03). Accordingly, the Village did not establish, prima facie, its entitlement to judgment as a matter of law, and the court should have denied the Village's motion for summary judgment dismissing the complaint.

         Under the circumstances, we decline the appellants' request to search the record (see generally CPLR 3212[b]; Ginter v Flushing Terrace, LLC, 121 A.D.3d 840, 845; Gammons v ...


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