Village of Brockport v. Webster

—Judgment unanimously modified on the law and as modified affirmed without costs and judgment granted in accordance with the following Memorandum: Plaintiff, the Village of Brockport (Village), commenced this action against defendants, the owners of residential properties in the Village, seeking, inter alia, an injunction directing defendants to cease and desist their alleged violations of certain zoning provisions of the Village Code. In their third affirmative defense, defendants allege that the limitation of occupancy of single-family residences based upon the definition of “family” in section 58-2 of the Brockport Village Code is illegal, discriminatory, void and unenforceable under the New York Constitution and laws of the State of New York and the United States Constitution.

Supreme Court properly concluded that the challenged section of the Code does not violate the New York Constitution (see, Matter of Unification Theol. Seminary u City of Poughkeepsie, 201 AD2d 484), the Human Rights Law (Executive Law art 15; see, McMinn v Town of Oyster Bay, 105 AD2d 46, 50, affd 66 NY2d 544), or the United States Constitution (see, Village of Belle Terre v Boraas, 416 US 1), and thus properly denied defendants’ cross motion for judgment on the third affirmative defense. The court erred, however, in granting judg*1011ment to the Village dismissing the third affirmative defense rather than declaring the rights of the parties (see, Pless v Town of Royalton, 185 AD2d 659, 660, affd 81 NY2d 1047; Matter of Builtland Partners v LaLanne Biltmore Health Spa, 93 AD2d 727, 728). We modify the judgment, therefore, by vacating the provision dismissing the third affirmative defense and granting judgment in favor of the Village declaring that the definition of “family” in section 58-2 of the Village Code is not illegal, discriminatory, void or unenforceable under the New York Constitution and laws of the State of New York or the United States Constitution. (Appeal from Judgment of Supreme Court, Monroe County, Galloway, J. — Declaratory Judgment.) Present — Pigott, Jr., P. J., Green, Hurlbutt, Scudder and Lawton, JJ.