Gerace v Town of Webb (2004 NY Slip Op 08478)

Gerace v Town of Webb

2004 NY Slip Op 08478 [12 AD3d 1142]

November 19, 2004

Appellate Division, Fourth Department

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

As corrected through Wednesday, January 19, 2005

Donna L. Gerace, Individually and as Parent and Natural Guardian of Robert R. Gerace, et al., Appellants, v Town of Webb et al., Respondents.

—[*1]Appeal from a judgment (denominated order) of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered June 16, 2003. The judgment dismissed the complaint and declared that Town of Webb Local Law No. 1 of 2002 is constitutional.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by vacating the first decretal paragraph and as modified the judgment is affirmed without costs.

Memorandum: Supreme Court erred in dismissing the complaint in this declaratory judgment action, and we therefore modify the judgment by vacating the first decretal paragraph (see Tumminello v Tumminello, 204 AD2d 1067 [1994]). We otherwise affirm. Present—Green, J.P., Scudder, Gorski, Martoche and Hayes, JJ.