Opinion
February 20, 1970
Appeal from an order of the Supreme Court at Special Term, entered October 22, 1969 in Albany County, which denied defendants' motion to dismiss the complaint for failure to state a cause of action. Plaintiff alleges in substance that it owns some 30 acres of land in the City of Albany; at the time plaintiff purchased the land the Zoning Law enacted in 1924 classified the property as "Heavy Industrial"; that the land was at that time vacant and unimproved and so remains; on May 2, 1966 the city amended the 1924 ordinance by reclassifying the property in question and placing it in an "A" residence zone; that all surrounding land remained zoned heavy industrial; that on May 20, 1968 the city passed a new comprehensive zoning ordinance which placed plaintiff's property in an "R-1 single family-residential zone", while the properties in the surrounding area were reclassified, "Heavy Manufacturing". Plaintiff brings this action for a declaratory judgment seeking a declaration that this zoning ordinance, as the same affects plaintiff's property, is confiscatory and unconstitutional. It is, of course, to the sufficiency of the complaint that this motion is directed. If, from a reading of the complaint, we can conclude that plaintiff has a cause of action, we must sustain it, even though the cause may be improperly stated. We must also construe the complaint liberally and view it most favorably to the plaintiff. An examination of the complaint in light of these rules compels us to conclude that it does state a cause of action. There are abundant facts set forth in the complaint if ultimately proved from which it could be established that the property in question is not suitable for residential use. (See Attoram Realty Corp. v. Town of Greenburgh, 8 A.D.2d 937. ) Since plaintiff has raised the constitutionality of the ordinance, it is unnecessary to first seek administrative relief. ( Northern Operating Corp. v. Town of Ramapo, 31 A.D.2d 822.) Order affirmed, with costs. Herlihy, P.J., Staley, Jr., Greenblott, Cooke and Sweeney, JJ., concur in memorandum by Sweeney, J.