Wayne v. Town of Brookhaven — 101 A.D.2d 864

Majority

p. 864

In the Matter of Wayne Roth et al., Respondents, v Town of Brookhaven et al., Appellants.

In a ptoceeding pursuant to CPLR article 78 to review a determination of the Zoning Board of Appeals of the Town of Brookhaven denying a variance for an accessory structure, the appeal is from so much of a judgment of the Supreme Court, Suffolk County (Copertino, J.),

p. 865

entered March 23,1983, as, while dismissing the article 78 proceeding as being untimely, converted the proceeding into an action for a declaratory judgment. 11 Judgment reversed insofar as appealed from, with costs, and the second and third decretal paragraphs are deleted. 11 Under the facts of this case, it was an improvident exercise of discretion to convert the CPLR article 78 proceeding into an action for a declaratory judgment. Titone, J. P., Gibbons, Brown and Lawrence, JJ., concur.