Mobil Oil Corp. v. Town of North Hempstead , 59 A.D.2d 551 ( 1977 )

In an action to, inter alia, declare a local law, which prohibits self-service gasoline service stations, to be invalid on its face, the parties cross-appeal from an order of the Supreme Court, Nassau County, dated September 8, 1976, which, upon defendant’s motion to dismiss the complaint (1) declared the local law valid and constitutional and (2) enjoined the enforcement of that law as against the plaintiffs existing self-service gasoline service station. Order reversed, on the law, without costs or disbursements, and motion denied. Special Term committed error in treating the defendant’s motion to dismiss the complaint as one for summary judgment. It did not "provide adequate notice to the parties, and thus give them an opportunity to make an appropriate record” (Rovello v Orofino Realty Co., 40 NY2d 633, 635). Moreover, the information submitted to the court on the motion supplied it with insufficient factual data upon-which to make a summary determination. Accordingly, a trial is mandated as to the validity of the ordinance in question as applied to plaintiff. Hopkins, J. P., Martuscello, Margett and O’Connor, JJ., concur.