Opinion
April 9, 1990
Appeal from the Supreme Court, Nassau County (Brucia, J.).
Ordered that the order dated November 18, 1988, is reversed, without costs or disbursements, and the motion is denied, and it is further,
Ordered that the appeal from the order dated March 3, 1989, is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument.
The plaintiff owns an unimproved plot of land in the Village of Old Westbury. He previously made two consecutive applications for an area variance with regard to the frontage requirement under the applicable zoning ordinance. Proceedings pursuant to CPLR article 78 followed the denial of each application. Both proceedings were dismissed by the Supreme Court, the second based upon the res judicata effect of the first administrative determination. The plaintiff appealed from the second dismissal and this court affirmed (Jensen v. Zoning Bd. of Appeals, 130 A.D.2d 549).
In the present action against the village, the plaintiff alleges that the zoning ordinance and its application deprived him of his property without just compensation in violation of the New York and United States Constitutions. The complaint was dismissed based upon the res judicata effect of the prior proceedings.
On appeal, the plaintiff argues that the constitutionality of the ordinance was not previously raised. Moreover, he argues that he could not properly raise the constitutionality of the ordinance in the earlier CPLR article 78 proceedings. The merit of the constitutional claim is not in issue on this appeal.
The denial or dismissal of the variance applications which were upheld by the courts do not have a res judicata effect upon the plaintiff's present constitutional challenge to the zoning ordinance (see, Arverne Bay Constr. Co. v. Thatcher, 278 N.Y. 222). It is clear that the constitutionality of the zoning ordinance was not and could not properly be raised in the prior proceedings pursuant to CPLR article 78 (Matter of Overhill Bldg. Co. v. Delany, 28 N.Y.2d 449, 457-458; see also, Matter of Friedman v. Cuomo, 39 N.Y.2d 81, 83; Matter of Lakeland Water Dist. v. Onondaga County Water Auth., 24 N.Y.2d 400, 407; Carino v Pilon, 142 A.D.2d 996; Matter of Axelrod v. Zoning Bd. of Appeals, 140 A.D.2d 437). While courts have the power to convert a proceeding pursuant to CPLR article 78 into an action for a declaratory judgment declaring the unconstitutionality of a statute (CPLR 103; Press v. County of Monroe, 50 N.Y.2d 695; Matter of Axelrod v. Zoning Bd. of Appeals, supra), such an option was not available in this case because the village was not named as a party and the plaintiff did not raise that issue in the prior CPLR article 78 proceedings (Matter of Overhill Bldg. Co. v. Delany, supra, at 458). In addition, the issue of the constitutionality of the zoning ordinance was not ripe for review until the variance application was denied (Matter of Parkview Assocs. v. City of New York, 71 N.Y.2d 274; de St. Aubin v Flacke, 68 N.Y.2d 66). Because the constitutionality of the ordinance was not and could not properly have been raised in the prior proceedings, the plaintiff is not now barred from raising that issue.
Matter of Kennedy v. Zoning Bd. of Appeals ( 145 A.D.2d 490) is distinguishable from the case at bar. In that case, the petitioner's constitutional claims went to the Zoning Board's finding, not the constitutionality of a zoning ordinance itself. Moreover, the court in Matter of Kennedy v. Zoning Bd. of Appeals (supra), reviewed the constitutional claims with respect to the merits.
The plaintiff's appeal from the order dated March 3, 1988, denying his motion that the Supreme Court correctly characterized as a motion for reargument must be dismissed as no appeal lies from an order denying reargument (see, Fluman v. TSS Dept. Stores, 100 A.D.2d 838). Mangano, P.J., Thompson, Bracken and Balletta, JJ., concur.