Jones v. Town of Carroll
Donald J. Jones v. Town of Carroll
Full Opinion (html_with_citations)
Defendants moved to dismiss the amended complaint pursuant to CPLR 3211 (a) (7) and (8) alleging, inter alia, that plaintiffs sought merely an advisory opinion. Plaintiffs cross-moved for summary judgment on the same grounds raised in their motion in appeal No. 1 (Jones, 57 AD3d 1376 [2008]). We conclude that Supreme Court erred in granting defendantsā motion, and we therefore modify the order accordingly. First, although the action sought a determination of plaintiffsā rights upon the happening of a future event, that future event is not one that is ābeyond the control of the partiesā (New York Pub. Interest Research Group v Carey, 42 NY2d 527, 531 [1977]; see Cuomo v Long Is. Light. Co., 71 NY2d 349, 354 [1988]). Second, plaintiffs have raised a valid challenge under article 8 of the Environmental Conservation Law, and thus a justiciable controversy exists (see Matter of Gordon v Rush, 299 AD2d 20, 30 [2002], affd 100 NY2d 236 [2003]; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 778 [1991]; see generally Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 203 [1987]).
We further conclude, however, that plaintiffs are not entitled to summary judgment on their amended complaint, for the reasons stated in our decision in appeal No. 1 (Jones 57 AD3d 1376 [2008]). PresentāMartoche, J.P., Smith, Centra, Peradotto and Pine, JJ.