Town of Brookhaven v. Marian Chun Enterprises Inc.

In an action to permanently enjoin the defendant from operating Lakeview Lodge Motel as a lodging, boarding and/or rooming house without having first obtained a proper certificate of occupancy, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Gerard, J.), dated October 3, 1986, which, after a nonjury trial, dismissed the complaint. Ordered that the judgment is reversed, on the law and the facts, with costs, and the defendant is permanently enjoined from using, maintaining or allowing the use and maintenance of the premises known as the Lakeview Lodge Motel as a lodging, boarding and/or rooming house without having first obtained the proper certificate of occupancy as required by Code of Town of Brookhaven § 85-14. A court should apply the zoning law applicable at the time a decision in a case is rendered (see, Matter of Triangle Inn v Lo Grande, 124 AD2d 737, 739; Matter of Huntington Ready-Mix Concrete v Town of Southampton, 112 AD2d 161, 162). Therefore, the trial court erred when it determined that it should not apply the amended definition of motel in effect when it rendered its decision in this case, and instead applied a former definition of motel. However, the trial court did consider the application of the amended ordinance and found that under it the defendant operated Lakeview Lodge Motel as a motel. We disagree. Under the amended ordinance, a motel is defined, inter alia, as a place which provides lodging for "transient travelers” (see, Code of Town of Brookhaven § 85-1 [B]). The facts in this case indicate that persons referred to Lakeview Lodge Motel by the Suffolk County Department of Social Services may reside there for periods of 3 to 6 months or at times longer, register their children in the local schools, and consider Lakeview Lodge Motel as their home. Such persons cannot be considered "transient” travelers (see, Mann v 125 E. 50th St. Corp., 124 Misc 2d 115, 116-117, affd 126 Misc 2d 1016; 87 CJS, Travel and Traveler, at 908-909). A certificate of occu [755] pancy appropriate to the use of Lakeview Lodge Motel as housing for such persons is necessary (see, Code of Town of Brookhaven § 85-14). Niehoff, J. P., Mangano, Bracken and Eiber, JJ., concur.