Pavone v. Wood

—In an action, inter alia, for a judgment declaring that the appointment of Thomas F. Wood as Town Attorney for the Town of Cortlandt was null and void, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Fredman, J.), entered September 30, 1997, as, upon converting the action to a proceeding pursuant to CPLR article 78, granted the defendants’ motion to dismiss the proceeding, and (2) from a judgment of the same court, entered [528] December 23, 1997, which, inter alia, dismissed the proceeding. Ordered that the appeal from the order is dismissed, as no appeal lies as of right from an intermediate order in a proceeding pursuant to CPLR article 78; and it is further, Ordered that the judgment is affirmed; and it is further, Ordered that the respondents are awarded one bill of costs. Upon correctly converting the within declaratory judgment action into a proceeding pursuant to CPLR article 78 (cf, Town of Fishkill v Royal Dutchess Props., 231 AD2d 511), the court properly dismissed the proceeding as time-barred under the applicable four-month limitations period (see, CPLR 217; see, DiMiero v Livingston-Steuben-Wyoming County Bd. of Coop. Educ. Servs., 199 AD2d 875, 877; see also, Matter of Holtzman v Marrus, 74 NY2d 865, 866; Lenihan v City of New York, 58 NY2d 679, 682; Matter of Wright v Town Bd., 170 AD2d 912, 913). In light of our determination, we need not reach the parties’ remaining contentions. Bracken, J. P., Pizzuto, Altman and Luciano, JJ., concur.