Sloane v. Weber

Judgment unanimously affirmed, without costs. Memorandum: Petitioners who own lot number 25 on the south side of Zoerb Avenue instituted an article 78 proceeding against the Cheektowaga Town Board to annul its amendment of the Town Zoning map and ordinance which rezoned the easterly 45 feet of lot 23 from R Residential District to C Retail Business District. The effect of the amendment was to put all of lot 23 in the C district, the west 34 feet thereof having previously been so zoned. Lot 23 which adjoins petitioner’s lot on the west is owned by Anthony Sehilage who also owns a lot in C zone fronting on Union Road the rear of which adjoins the southerly part of the west side of lot 23. When appellants’ petition was presented at Special Term they realized that the action of the Town Board, being legislative in nature, could not be reviewed in an article 78 proceeding (see Matter of Mandis v. Gorski, 24 A D 2d 181). Petitioners, therefore, requested that Special Term view their petition as an action for declaratory judgment in which the validity of the amendment could be decided. In a proper case the court may treat a proceeding commenced in the form of an article 78 proceeding as if it were an action for a declaratory judgment (CPLR 103, subd. i[e]; 1 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 103.08; Matter of Lakeland Water Dist. v. Onondaga County Water Auth., 29 A D 2d 1042, affd. 24 N Y 2d 400; Matter of Mandis v. Gorski, supra). Where, as here, the owner of the rezoned property is not before the court, the “ court may, and ordinarily must, refuse to render a declaratory judgment ”. (Manhattan Stor. & Warehouse Co. v. Movers & Warehousemover’s Assn., 289 N. Y. 82, 88; Wood v. City of Salamanca, 289 N. Y. 279, 283.) The petition was properly dismissed. Appellants may still maintain an action for a declaratory judgment, however, despite dismissal of their petition (see Lutheran Church v. City of New York, 27 A D 2d 237). (Appeal from judgment of Erie Special Term dismissing petition in article 78 proceeding to set aside rezoning.) Present — Goldman, P. J., Witmer, Cardamone, Simons and Henry, JJ.