Opinion
October 5, 1987
Appeal from the Supreme Court, Suffolk County (McInerney, J.).
Ordered that the order is modified, on the law, by adding a provision thereto declaring that the action of the defendant denying the plaintiff's request for a zoning change was not improper; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant.
Although this action was originally brought as a proceeding pursuant to CPLR article 78, Special Term appropriately converted it to an action for a declaratory judgment since the applicant sought a legislative change of zoning (see, CPLR 103 [c]; Kasper v. Town of Brookhaven, 122 A.D.2d 200, 201). The plaintiff failed to demonstrate that the defendant's approval of her application for a zoning change would not have resulted in impermissible spot zoning (see, Dauernheim, Inc. v. Town Bd., 33 N.Y.2d 468, 473-474; Taylor v. Incorporated Vil. of Head of Harbor, 104 A.D.2d 642, 645, lv denied 64 N.Y.2d 609), that the present zoning ordinance deprived her of a reasonable return on her property under any permissible use (see, Northern Westchester Professional Park Assocs. v. Town of Bedford, 60 N.Y.2d 492, 501), or that the defendant's action in denying her application was the result of discrimination (see, Megin Realty Corp. v. Baron, 46 N.Y.2d 891, 893). Therefore, we do not disturb the action taken by the defendant.
The court erred in disposing of this action without declaring the rights of the parties (see, Lanza v. Wagner, 11 N.Y.2d 317, 322, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901; Alleva v. Alleva Dairy, 129 A.D.2d 663). Weinstein, J.P., Rubin, Kunzeman and Kooper, JJ., concur.