Opinion
July 20, 1970
In a proceeding pursuant to article 78 of the CPLR to annul a determination of respondent denying petitioner's application for a special permit, petitioner appeals from so much of a judgment of the Supreme Court, Westchester County, entered March 23, 1970, as, on reargument, dismissed the petition on the ground that petitioner had chosen the wrong remedy. Judgment reversed insofar as appealed from, on the law, with $10 costs and disbursements, petition reinstated and proceeding remanded to the Justice who dismissed the petition for further proceedings not inconsistent herewith. We are of the view that this proceeding should be deemed an action for a declaratory judgment and continued as such for the purpose of testing the validity of the amendment to the zoning ordinance (see Matter of Lakeland Water Dist. v. Onondaga County Water Auth., 24 N.Y.2d 400; Matter of Town of Bedford v. Village of Mt. Kisco, 34 A.D.2d 687; Matter of Figari v. New York Tel. Co., 32 A.D.2d 434, 441; Matter of O'Shea, 28 A.D.2d 977; Matter of Mandis v. Gorski, 24 A.D.2d 181; CPLR 103, subd. [c]). Hopkins, Acting P.J., Martuscello, Latham, Brennan and Benjamin, JJ., concur.