
    Bernard Nogas et al., Appellants, v Michael Griffin et al., as Members of the Town Board of the Town of Kirkland, et al., Respondents.
   —Judgment unanimously reversed on the law without costs, and complaint reinstated. Memorandum: Petitioners commenced a CPLR article 78 petition to annul an amendment by the Town Board of the Town of Kirkland to its Zoning Ordinance, which rezoned approximately two acres of land from R-20 (Residential) to C-l (Commercial). Petitioners’ primary contention in this proceeding was that this action constituted invalid spot zoning.

Special Term pursuant to CPLR 103 (c) converted this article 78 proceeding into a declaratory judgment action and summarily dismissed the action. Because petitioners sought to challenge the constitutionality of this zoning amendment, Special Term correctly converted this proceeding into an action for declaratory judgment (Matter of Amerada Hess Corp. v Lefkowitz, 82 AD2d 882). It was, however, error to summarily dismiss this action. No motion to dismiss the action or for summary judgment was before the court to provide a procedural vehicle for this summary disposition. Further, no notice was given to the parties that the court was contemplating this procedure. Additionally, the allegations of the petition present factual issues which prevent summary dismissal of their spot zoning claim (Cf, Peekskill Suburbs v Morabito, 74 AD2d 843, affd 51 NY2d 941). (Appeal from judgment of Supreme Court, Oneida County, Tenney, J.—declaratory judgment.) Present—Dillon, P. J., Boomer, Balio, Lawton and Davis, JJ.  