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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Suzanne M. LIEDERMAN, Appellant, v. Howard MILLS III, etc., et al., Respondents.

Decided: April 28, 1997

Before BRACKEN, J.P., and MILLER, SULLIVAN and McGINITY, JJ. Stephen R. Hunter, Goshen, for appellant. Monte J. Rosenstein, Town Attorney, Middletown, for Town of Wallkill respondents. Richard B. Golden, County Attorney, Goshen (Antoinette Gluszak, of counsel), for Orange County respondents.

In a proceeding pursuant to CPLR article 78 for a declaration that the ward system of the Town of Wallkill as presently apportioned is invalid and unconstitutional, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated March 12, 1996, which, upon granting the motion by the Town of Wallkill respondents to dismiss the petition, dismissed the petition.

ORDERED that the order and judgment is reversed, on the law, without costs or disbursements, the motion is denied, the petition is reinstated, the proceeding is converted to an action for a declaratory judgment, the order to show cause is deemed to be the summons and the petition is deemed to be the complaint, and the matter is remitted to the Supreme Court, Orange County, to afford the respondents an opportunity to serve and file an answer within 20 days of service upon them of this decision and order with notice of entry.

We agree with the petitioner that as a registered voter residing within the most populous ward in the Town of Wallkill, she has standing to challenge the apportionment of the ward system in the town (cf., Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663;  Michel v. Anderson, 14 F.3d 623).

However, the appropriate vehicle for determination of the petitioner's claim is an action for a declaratory judgment and not a proceeding pursuant to CPLR article 78.   The proceeding is thus converted to an action for a declaratory judgment (see, CPLR 103[c];  cf., Matter of Lakeland Water Dist. v. Onondaga County Water Auth., 24 N.Y.2d 400, 301 N.Y.S.2d 1, 248 N.E.2d 855;  Matter of Nassau Shores Civic Assn. v. Colby, 118 A.D.2d 782, 500 N.Y.S.2d 291;  Matter of Stockfield v. Town Bd. of Town of Somers, 87 A.D.2d 633, 448 N.Y.S.2d 228).


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