THE HOLLOWS AT LOCH LEA ASSOCIATION, INC. v. TOWN OF CLARENCE
8 A.D.3d 994 (2004)
778 N.Y.S.2d 587
THE HOLLOWS AT LOCH LEA ASSOCIATION, INC., Respondent, v. TOWN OF CLARENCE, Appellant.
Appellate Division of the Supreme Court of the State of New York, Fourth Department.
June 14, 2004.
Present — Wisner, J.P., Hurlbutt, Kehoe, Martoche and Lawton, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted, the complaint is dismissed and the cross motion is denied.
Supreme Court erred in denying defendant's motion to dismiss this declaratory judgment action and in granting plaintiff's cross motion for leave to serve an amended complaint. Plaintiff is an incorporated homeowners' association comprised of owners of various adjoining parcels of land located in defendant town. Plaintiff commenced this action seeking a declaration that Real Property Law § 339-y (1) (f), RPTL 581 (1) (c) and related local laws are unconstitutional. To encourage condominium ownership, condominium units are assessed so that their aggregate value does not "exceed the total valuation of the property were the property assessed as a parcel" (Real Property Law § 339-y  [b]). However, section 339-y (1) (f) and RPTL 581 (1) (c) eliminated the condominium tax benefit to homeowners who convert their home ownership to condominium ownership solely to obtain that tax benefit. Because plaintiff has not made the conversion, this action is merely a request for an advisory opinion. "The courts of New York do not issue advisory opinions for the fundamental reason that in this State `[the] giving of such opinions is not the exercise of the judicial function'" (Cuomo v Long Is. Light. Co., 71 N.Y.2d 349, 354 , quoting Matter of State Indus. Commn., 224 N.Y. 13, 16 ). Consequently, the court erred in denying defendant's motion to dismiss the declaratory judgment action (see Town of Islip v Cuomo, 147 A.D.2d 56, 65-66 ; Bolt Assoc. v Diamonds-In-The-Roth, 119 A.D.2d 524, 525 ; Board of Educ., Shoreham-Wading Riv. Cent. School Dist. v State of New York, 111 A.D.2d 505, 507-508 , lv dismissed 66 N.Y.2d 854 ).
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