Tylec v. Niagara County Legislature

175 A.D.2d 676, 572 N.Y.S.2d 600, 1991 N.Y. App. Div. LEXIS 10261

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1991
• Status: Published

Opinion

— Judgment unanimously affirmed without costs. Memorandum: At the outset, we note that this action, framed as a request for CPLR article 78 relief, should be converted to a demand for declaratory judgment (CPLR 103 [c]; Kamhi v Town of Yorktown, 141 AD2d 607, 609, affd 74 NY2d 423). Upon converting the action to one for declaratory judgment, we agree with the declaration of Supreme Court that the redistricting plan enacted by the Niagara County Legislature is invalid. The plan submitted to the Legislature on April 15th was not in final form and was different from the plan submitted on April 16th and passed by the Legislature on April 23rd. Thus, it violated the seven-day requirement of section 20 (4) of the Municipal Home Rule Law. It was not an abuse of discretion for the Court to deny the motion of the proposed intervenor. (Appeal from Judgment of Supreme Court, Niagara County, Koshian, J. — Article 78.) Present — Dillon, P. J., Den-man, Green, Pine and Lawton, JJ. (Order entered June 25, 1991.)