Al Turi Landfill, Inc. v. Greenhill ( 1983 )

— In an action, inter alia, for a judgment declaring that the provisions of Local Law No. 3 of the Town of Goshen, enacted May 21,1981, are null and void, plaintiff appeals from a judgment of the Supreme Court, Orange County (Green, J.), entered July 27,1982, which dismissed its second and third causes of action on the merits, and from so much of an order of the same court, dated October 18, 1982, as, upon renewal, adhered to the original determination. Defendants appeal from so much of an order of the same court, dated July 27,1982, as denied that branch of their cross motion which sought dismissal of plaintiff’s first cause of action for failure to state a cause of action. Appeal from the judgment entered July 27,1982 dismissed as academic. That judgment was superseded by the order dated October 18, 1982, made upon renewal. Order dated October 18, 1982 reversed, insofar as appealed from, judgment dated July 27, 1982 vacated, and upon renewal plaintiff’s second and third causes of action reinstated. Order dated July 27,1982 affirmed insofar as appealed from. Plaintiff is awarded one bill of costs. It was error to dismiss plaintiff’s second and third causes of action on the ground of res judicata. The second cause of action asserts a claim premised on the inconsistency between Local Law No. 3, as applied, and State laws and policies. That is a different cause of action than the pre-emption claim which was asserted and disposed of in a prior Federal action. The third cause of action is premised on State due process concerns, and asserts a cause of action that was not addressed by the Federal courts in disposing of plaintiff’s Federal due process claim. The allegations of plaintiff’s first cause of action adequately state a cause of action. Finally, we note that in light of our reinstatement of the second and third causes of action, plaintiff is free to once again seek preliminary injunctive relief from Special Term of the Supreme Court, Orange County, in the first instance. Damiani, J. P., Thompson, O’Connor and Niehoff, JJ., concur.