Island Swimming Sales, Inc., Appellant, v. County of Nassau et al., Respondents

Island Swimming Sales, Inc., Appellant, v County of Nassau et al., Respondents. [MAJORITY] — In an action, inter alia, to declare the Nassau County Fire Prevention Ordinance unconstitutional, plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Spatt, J.), entered September 30, 1981, as held that articles 2 and 3 of the ordinance were constitutional. Order reversed, insofar as appealed from, on the law, without costs or disbursements, and judgment is granted in favor of defendants dismissing the complaint in its entirety. A criminal information was filed, charging plaintiff with violating certain provisions of the Nassau County Fire Prevention Ordinance. Plaintiff then commenced the instant action challenging, inter alia, the constitutionality of articles 2 and 3 of the ordinance. It was error for Special Term to entertain jurisdiction since the constitutional claims raised by plaintiff should be adjudicated in the pending criminal proceeding (see Kelly’s Rental v City of New York, 44 NY2d 700, 702; Sa-Bleu, Inc., v Village of Port Chester, 42 Mise 2d 360; Commander Oil Corp. v Town of Oyster Bay, 41 Mise 2d 926). Accordingly, the action should have been dismissed. Weinstein, J. P., Thompson, Bracken and Boyers, JJ., concur.