Opinion
January 29, 1988
Appeal from the Supreme Court, Oneida County, Tenney, J.
Present — Dillon, P.J., Boomer, Balio, Lawton and Davis, JJ.
Judgment unanimously reversed on the law without costs, and complaint reinstated. Memorandum: Petitioners commenced a CPLR article 78 petition to annul an amendment by the Town Board of the Town of Kirkland to its Zoning Ordinance, which rezoned approximately two acres of land from R-20 (Residential) to C-1 (Commercial). Petitioners' primary contention in this proceeding was that this action constituted invalid spot zoning.
Special Term pursuant to CPLR 103 (c) converted this article 78 proceeding into a declaratory judgment action and summarily dismissed the action. Because petitioners sought to challenge the constitutionality of this zoning amendment, Special Term correctly converted this proceeding into an action for declaratory judgment (Matter of Amerada Hess Corp. v Lefkowitz, 82 A.D.2d 882). It was, however, error to summarily dismiss this action. No motion to dismiss the action or for summary judgment was before the court to provide a procedural vehicle for this summary disposition. Further, no notice was given to the parties that the court was contemplating this procedure. Additionally, the allegations of the petition present factual issues which prevent summary dismissal of their spot zoning claim (Cf., Peekskill Suburbs v Morabito, 74 A.D.2d 843, affd 51 N.Y.2d 941).