From Casetext: Smarter Legal Research

Kasper v. Town of Brookhaven

Appellate Division of the Supreme Court of New York, Second Department
Jul 21, 1986
122 A.D.2d 200 (N.Y. App. Div. 1986)

Opinion

July 21, 1986

Appeal from the Supreme Court, Suffolk County (Lama, J.).


On the court's own motion, the appellant's notice of appeal from the order denying its motion to dismiss is treated as an application for leave to appeal, said application is referred to Justice Weinstein, and leave to appeal is granted by Justice Weinstein.

Upon appeal by permission, order modified, by adding thereto a provision converting the proceeding into an action for a declaratory judgment with the petition deemed the complaint. As so modified, order affirmed, without costs or disbursements. The appellant's time to answer is extended until 20 days after service upon it of a copy of the order to be made hereon, with notice of entry.

The petitioner seeks review of a denial of his application to have certain of his property rezoned. As the appellant properly contends, however, such review cannot be had in a proceeding pursuant to CPLR article 78 because a denial of an application to rezone constitutes legislative action (see, Matter of Stockfield v Town Bd. of Town of Somers, 87 A.D.2d 633; Matter of Amerada Hess Corp. v Lefkowitz, 82 A.D.2d 882, appeal dismissed 55 N.Y.2d 799; Jaffe v Burns, 64 A.D.2d 692; Matter of Southern Dutchess Country Club v Town Bd. of Town of Fishkill, 25 A.D.2d 866, affd 18 N.Y.2d 870). The appropriate vehicle for such review is an action for a declaratory judgment (see, Matter of Amerada Hess Corp. v Lefkowitz, supra; Jaffe v Burns, supra). Notwithstanding the inappropriateness of a proceeding pursuant to CPLR article 78, the petition need not be dismissed. Rather we may convert it to an action for a declaratory judgment (see, CPLR 103 [c]). Brown, J.P., Weinstein, Rubin and Kooper, JJ., concur.


Summaries of

Kasper v. Town of Brookhaven

Appellate Division of the Supreme Court of New York, Second Department
Jul 21, 1986
122 A.D.2d 200 (N.Y. App. Div. 1986)
Case details for

Kasper v. Town of Brookhaven

Case Details

Full title:ALAN KASPER, Respondent, v. TOWN OF BROOKHAVEN, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 21, 1986

Citations

122 A.D.2d 200 (N.Y. App. Div. 1986)

Citing Cases

Muhametaj v. Town of Orangetown

The appropriate vehicle for such review is an action for declaratory judgment. In the Matter of Joseph P.…

Matter of Wolfe v. Town Bd. of Town of Islip

Ordered that the order is modified, on the law, by adding a provision thereto declaring that the action of…