
    In the Matter of Donald H. Gerdts et al., Appellants, v Mario M. Cuomo, as Governor of the State of New York, Respondent.
    [609 NYS2d 458]
   —Appeal from a judgment of the Supreme Court (Prior, Jr., J.), entered December 8, 1992 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondent’s motion to dismiss the petition/complaint for failure to state a cause of action.

Executive Law § 803 provides that members of the Adirondack Park Agency are to be appointed by respondent "with the advice and consent of the [S]enate” for terms of four years. The statute further provides that members hold office until a successor is appointed and qualified unless the member resigns or is removed. Petitioners commenced this combined CPLR article 78 proceeding and declaratory judgment action to, inter alia, compel respondent to appoint new members to the Agency, contending that respondent has failed to appoint new members although the terms of the present members have expired. We agree with Supreme Court that petitioners seek a judgment in the nature of mandamus. Assuming that petitioners have standing, we also concur with Supreme Court, given the nature of the powers at issue, that petitioners have failed to establish that they have a clear legal right to the relief sought and have therefore failed to state a cause of action.

Mikoll, J. P., Crew III, White, Yesawich Jr. and Peters, JJ., concur. Ordered that the judgment is affirmed, without costs.  