Belviso v. Noto , 501 N.Y.S.2d 447 ( 1986 )

— In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Town Board of Babylon, dated July 3, 1984, denying the petitioner’s application for a zoning change, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (McCarthy, J.), entered January 29, 1985, which, inter alia, upon the respondents’ motion, dismissed the proceeding.

Judgment affirmed, without costs or disbursements.

The petitioner seeks review of a denial of his application to rezone his property. Such review, however, cannot be had in a CPLR article 78 proceeding, because the denial of rezoning is legislative action (see, Matter of Amerada Hess Corp. v Lefkowitz, 82 AD2d 882, lv dismissed 55 NY2d 799; Jaffe v Burns, 64 AD2d 692). The appropriate vehicle for such review is an action for a declaratory judgment (Matter of Amerada Hess Corp. v Lefkowitz, supra; Jaffe v Burns, supra). Accordingly, Special Term was correct in dismissing the proceeding. Finally, Special Term did not abuse its discretion in declining the opportunity to convert the proceeding to a declaratory judgment action pursuant to CPLR 103 (c) since the allegations in the petition were insufficient to make out a valid cause of action (Rodgers v Village of Tarrytown, 302 NY 115; Gordon v Town of Huntington, 224 NYS2d 149). Lazer, J. P., Mangano, Gibbons and Bracken, JJ., concur.