In the Matter of William D. Cram et al., Petitioners, v. Town of Geneva et al., Respondents

In the Matter of William D. Cram et al., Petitioners, v Town of Geneva et al., Respondents. [MAJORITY] Order unanimously vacated without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Petitioners’ challenge to the adoption of Ordinance No. 90-1 by the Town Board of the Town of Geneva was improperly transferred to this court by Supreme Court (see, Town Law § 267 [7]). Moreover, the challenge should have been asserted in a declaratory judgment action rather than a CPLR article 78 proceeding (see, Matter of Swanick v Erie County Legislature, 103 AD2d 1036, 1037, appeal dismissed 64 NY2d 1039). This court lacks jurisdiction to consider a declaratory judgment action in the absence of a proper appeal from a court order or judgment. (Article 78 Proceeding Transferred by Order of Supreme Court, Ontario County, Curran, J.) Present — Denman, P. J., Green, Pine, Balio and Fallon, JJ.