
    Fourth Department,
    December, 1985
    (December 20, 1985)
    Town of Tonawanda et al., Respondents, et al., Plaintiff, v Merilyn H. Ayler et al., Defendants, and Sheridan Parkside Citizens Alliance et al., Appellants.
   Judgment unanimously reversed, on the law, without costs, motion denied and Real Property Tax Law §§ 729-738 declared constitutional. Memorandum: The court correctly determined that a declaratory judgment action was the proper vehicle to test the constitutionality of legislation (Matter of Merced v Fisher, 38 NY2d 557, 559). However, the court erred in declaring unconstitutional those sections of Real Property Tax Law article 7, title 1-A (§§ 729-738) which permit the use of residential assessment ratios and residential comparables in the small claims assessment review procedure. The use of residential assessment ratios or residential comparables does not create a separate assessment class. Plaintiffs’ equal protection rights

are not violated by a legislative determination that owner-occupants of one-, two- or three-family homes in a small claims assessment review procedure may show inequality by evidence not admissible in a proceeding under Real Property Tax Law article 7, title 1 (see, Colt Indus. v Finance Administrator of City of N. Y, 54 NY2d 533). (Appeals from judgment of Supreme Court, Erie County, Wolf, J.—declaratory judgment.) Present—Callahan, J. P., Denman, Boomer, Green and Pine, JJ.  