Benigno v. Cohalan

In an action for a declaratory judgment, defendants appeal from a judgment of the Supreme Court, Suffolk County, entered June 27, 1974, which declared that (1) certain rezoning resolutions of the Islip Town Board, dated January 3, 1972 and February 22,1972, were null and void and (2) the resolution of the said board, dated November 11,1971, relating to plaintiff’s property, remained in full force and effect. Judgment modified, on the law, by deleting therefrom the second decretal paragraph and substituting therefor a declaration of the invalidity of the resolution dated November 11, 1971. As so modified, judgment affirmed, without costs. Special Term’s findings of fact are affirmed. The zoning resolution dated November 11,1971 was never published as required by section 265 of the Town Law, and hence never became effective (see Barry v Town of Glenville, 8 NY2d 1153, 1155; Sackett Lake Prop. Owners Assn, v Levine, 268 App Div 809, mot for lv to app den 294 NY 645; Milano v Town of Patterson, 197 Misc 457, 459; Village of Williston Park v Israel, 191 Misc 6, affd 276 App Div 968, affd 301 NY 713). It therefore cannot be in full force and effect. Plaintiff is, however, entitled to be returned to the status quo ante (Cooper v Dubow, 41 AD2d 843, mot for [872] lv to app den 33 NY2d 517). Rabin, Acting P. J., Hopkins, Christ, Munder and Shapiro, JJ., concur.