ASHLEY BUILDERS CORP v. TOWN OF BROOKHAVEN (2007)

In an action for a judgment declaring that the defendant effected an unconstitutional taking by imposing certain conditions on the issuance of a certificate of occupancy, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Loughlin, J.), dated February 2, 2006, which granted the defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a)(7).

ORDERED that the order is affirmed, with costs.

 “A justiciable controversy must involve a present, rather than hypothetical, contingent or remote, prejudice to the plaintiff” (Waterways Dev. Corp. v. Lavalle, 28 A.D.3d 539, 540, 813 N.Y.S.2d 485, citing American Ins. Assn. v. Chu, 64 N.Y.2d 379, 383, 487 N.Y.S.2d 311, 476 N.E.2d 637, cert. denied 474 U.S. 803, 106 S.Ct. 36, 88 L.Ed.2d 29).  “The dispute must be real, definite, substantial, and sufficiently matured so as to be ripe for judicial determination” (Waterways Dev. Corp. v. Lavalle, supra at 540, 813 N.Y.S.2d 485 [citations omitted] ).

 Here, the record shows that the plaintiff did not apply for a certificate of occupancy for the single-family dwelling that it intends to build on the subject property, and that the defendant has not made a final determination denying the plaintiff a certificate of occupancy.   Thus, this dispute is not ripe for judicial review, and there is no justiciable controversy upon which the court may properly render a declaratory judgment.   Under these circumstances, the Supreme Court correctly granted the defendant's motion to dismiss the complaint (see CPLR 3211[a][7];  Weingarten v. Town of Lewisboro, 77 N.Y.2d 926, 569 N.Y.S.2d 599, 572 N.E.2d 40;  Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510, 505 N.Y.S.2d 24, 496 N.E.2d 183, cert. denied 479 U.S. 985, 107 S.Ct. 574, 93 L.Ed.2d 578;  Waterways Dev. Corp. v. Lavalle, supra at 540, 813 N.Y.S.2d 485).