R. W. D. Jewett v. Luau-Nyack Corp. 36 A.D.2d 632

Christ, Brennan and Benjamin, JJ., concur; Hopkins, Acting P. J., and Shapiro, J., dissent and vote to reverse the order insofar as appealed from and to grant the motion to dismiss the petition, with the following memorandum: We are of the opinion that subdivision 7-a of section 89 of the Village Law is a permissive statute rather than one that is self-executing. If the governing body of a village desires to exercise the powers granted under the statute, it must first enact a local ordinance adopting such powers (cf. 23 Op. St. Comp., 1967, p. 779). If the village elects to use the power of the statute by virtue of adopting a resolution coupled with an order, it must follow the same procedures mandated for the enactment of an ordinance (Village Law, §§ 90, 92). The Village of Upper Nyack did not follow these procedures and the petition should therefore be dismissed.