During the pendency of a criminal enforcement action, the petitioners sought a stay of the criminal proceedings as well as declarations regarding the conforming nature of certain alterations and improvements made to a residence an accessory building on the petitioner’s lot. The criminal action involves non-compliance with a prior court order addressing various violations of the zoning and building codes applicable to the petitioners’ residence. The Order directed the petitioners to obtain all necessary permits and approvals within a specified time frame, and in the alternative, to remove all non-conforming alterations and improvements and to restore the premises to the condition they were in when the original certificate of occupancy was issued.

                                 

The Court agreed with the Town that under provisions of the Town Law as well as the Town Code, they have a statutory duty to enforce building and safety codes, and therefore the Court is without authority to enjoin the Town’s prosecution of the pending criminal proceeding.  However, the Court also noted that the determinations of municipal officials regarding which violations shall be prosecuted or otherwise resolved are matters of discretion, and therefore not statutorily compelled and hence not “the performance of statutory duties” within the purview of sec. 6313 of the NY Civil Procedure Law and Rules.  While the Court determined that it had authority to stay proceedings under the CPLR, nevertheless, the Court determined that the petitioner’s claims for declaratory relief and/or injunctive relief could not preclude or otherwise affect the Town’s continuing prosecution of its criminal proceeding. This is because the remedy of declaratory judgment is only available where a constitutional question is involved on the legality or meaning of a statute is in question and no question of fact is involved, and here there are no constitutional issues nor any question regarding the legality of the Town Code provisions.

 

Fortuna v. Prusinowski, 2008 WL 526426 ( N.Y.Sup. Ct. Suffolk Co., 12/11/2008).

 

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