First National City Bank v. State , 54 A.D.2d 957 ( 1976 )

In an action inter alia to declare that article 25 of the Environmental Conservation Law (Tidal Wetlands Act) is unconstitutional as applied to plaintiff, (1) the State defendants appeal from so much of an order of the Supreme Court, Suffolk County, entered April 5, 1976, as, in resettling a prior order of the same court, entered September 9, 1975, denied their motion to dismiss the complaint on various of the grounds set forth in CPLR 3211 (subd [a]), and (2) plaintiff cross-appeals from so much of said order as denied its application, made pursuant to CPLR 3211 (subd [c]), that the motion of the State defendants to dismiss the complaint be treated as one for summary judgment and that, upon such motion, summary judgment be granted to it upon its first, second and sixth causes of action. Order affirmed insofar as appealed from, without costs or disbursements. The complaint is legally sufficient and raises factual issues which preclude summary judgment (see de St. Aubin v Biggane, 51 AD2d 1054). The State defendants’ time to answer is extended until 20 days after the service upon them of a copy of the order to be entered hereon, together with notice of entry thereof. Hopkins, Acting P. J., Martuscello, Latham, Cohalan and Hawkins, JJ., concur.