FAIRHAVEN APTS. NO. 4 v. TOWN OF N. HEMPSTEAD

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring, inter alia, article VI of the Code of the Town of North Hempstead to be constitutional.

Article VI of the Code of the Town of North Hempstead (hereinafter Code of Town of North Hempstead) requires the owner of a dwelling unit in the Town to obtain a rental occupancy permit before allowing, inter alia, the occupancy and use of the dwelling unit as a rental ( see Code of Town of North Hempstead § 2-103). Further, in order to obtain a permit, the owner must pay a nonrefundable application fee ( see Code of Town of North Hempstead § 2-105).

The complaint's fourth cause of action alleges that the permit application fee constitutes an unauthorized tax. With respect to that cause of action, the Town made a prima facie showing of entitlement to judgment as a matter of law ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320) by demonstrating that the permit application fee is not "greater than a sum reasonably necessary to cover the costs of issuance, inspection and enforcement" ( ATM One v. Incorporated Vil. of Freeport, 276 A.D.2d 573, 574; Matter of Torsoe Bros. Constr. Corp. v. Bd. of Trustees of Inc. Vil. of Monroe, 49 A.D.2d 461, 465; see Suffolk County Bldrs. Assn. v. County of Suffolk, 46 N.Y.2d 613). In opposition, the plaintiff failed to raise a triable issue of fact.

With respect to the three remaining causes of action, the Town also made a prima facie showing of entitlement to judgment as a matter of law ( see Alvarez v. Prospect Hosp., supra). The plaintiff did not oppose the branches of the Town's motion which were for summary judgment with respect to those causes of action, and thus failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the Town's motion for summary judgment.

Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment declaring, inter alia, article VI of the Code of the Town of North Hempstead to be constitutional ( see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).

H. MILLER, J.P., GOLDSTEIN, LUCIANO and SPOLZINO, JJ., concur.