
    In the Matter of Joseph Pappalardo, Appellant, v New York State Department of Environmental Conservation et al., Respondents.
   In a proceeding pursuant to CPLR article 78, inter alia, to vacate a consent order of the Department of Environmental Conservation, issued pursuant to ECL 71-2303, and to declare that the property of petitioner is not subject to the jurisdiction of the department, petitioner appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Dutchess County, dated April 14, 1978, as, upon granting respondents’ motion to dismiss the proceeding, dismissed the branches of the petition which sought to (a) vacate the consent order, (b) declare that his property is not subject to the jurisdiction of the Department of Environmental Conservation and (c) enjoin respondents from "harassing” him and "trespassing” on his property. Judgment modified, on the law, by adding thereto (1) immediately after the provision dismissing the petition, the following: "except insofar as the petition seeks declaratory relief and to enjoin respondents from harassing petitioner and trespassing on his property,” and (2) a provision that with respect to the aforesaid prayers for declaratory and injunctive relief, the proceeding is converted into an action at law for declaratory and injunctive relief. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements. The petition insofar as it pertains to the aforesaid prayers for declaratory and injunctive relief is deemed the complaint. Respondents’ time to serve an answer is extended until 20 days after service upon them of a copy of the order to be entered hereon, together with notice of entry thereof. Upon determining that a CPLR article 78 proceeding was inappropriate with respect to certain matters, Special Term should have converted the relevant causes not susceptible of article 78 treatment into an action for declaratory and injunctive relief pursuant to CPLR 103 (subd [c]). Mollen, P. J., Lazer, Cohalan and Gibbons, JJ., concur.  