Town of Thompson v. Alleva , 429 N.Y.S.2d 481 ( 1980 )

Kane, J., concurs in part and dissents in part in the following memorandum. Kane, J. (concurring in part and dissenting in part).

I agree with the majority insofar as it concludes that defendants should be granted permission to serve an amended answer, but I do not believe they are further entitled to summary relief. Although explicit statutory authorization is not required (cf. New York Trap Rock Corp. v Town of Clarkstown, 299 NY 77), the sections of the Town Law cited by the majority plainly empower a town to initiate an action to enjoin violations of its zoning ordinance. Defendants’ contention that plaintiff failed to properly exercise such authority does not represent a true attack on its legal ability or "capacity” to maintain this litigation (CPLR 3211, subd [a], par 3); it merely presents a defensive challenge to the validity of the town’s apparent decision to do so. None of the foregoing statutes mandate the passage of a resolution as a precondition to the commencement of judicial proceedings, and the absence of a directive to undertake specific action does not necessarily reflect a choice to eschew avenues of legal redress. The instant lawsuit has been brought in the name of the town by its assistant attorney and appears to be regular on its face. However, since the opposing affidavits on the motion do not conclusively establish the will of the town board in the matter, the issue cannot be resolved in a summary manner in favor of either party. Accordingly, the order appealed from should be reversed and defendants’ motion granted to the extent of allowing them permission to serve an amended answer.