
    Theodore H. Sheldon et al., Appellants, v Town of Highlands et al., Respondents.
   — In a proceeding pursuant to CPLR article 78 to prohibit the respondent Town of Highlands from imposing an assessment on the petitioner’s property for a sewer improvement, the petitioner appeals from (1) an order of Supreme Court, Orange County (Isseks, J.), entered April 3, 1986, which granted the cross motion of the Town of Highlands to dismiss the proceeding with leave to replead, and (2) an order and judgment (one paper), of the same court, dated September 19, 1986, which dismissed the petition for failure to state a cause of action.

Ordered that the appeal from the order entered April 3, 1986, is dismissed, without costs or disbursements, as it was superseded by the order and judgment dated September 19, 1986; and it is further,

Ordered that the order and judgment dated September 19, 1986, is reversed, on the law, without costs or disbursements, the order entered April 3, 1986, is vacated, the proceeding is converted into an action for a declaratory judgment (see, CPLR 103 [c]) with the petition deemed the complaint, and the matter is remitted to the Supreme Court, Orange County, for further proceedings consistent herewith.

At issue in this proceeding is the constitutionality of the Laws of 1983 (ch 755). That issue is not reviewable in a proceeding brought pursuant to CPLR article 78 (see, Press v County of Monroe, 50 NY2d 695; Matter of Nassau Shore Civic Assn. v Colby, 118 AD2d 782, appeal dismissed 68 NY2d 808). Accordingly, the proceeding is hereby converted pursuant to CPLR 103 (c) into a declaratory judgment action with the petition deemed the complaint (see, Matter of Nassau Shores Civic Assn. v Colby, supra). However, in view of the fact that the Attorney-General did not receive prior notification of the present challenge to the constitutionality of the statute as required by Executive Law § 71 and CPLR 1012 (see, Matter of McGee v Korman, 70 NY2d 225), the matter is hereby remitted to the Supreme Court, Orange County, for further proceedings including the necessary notification to the Attorney-General. Mollen, P. J., Brown, Rubin and Spatt, JJ., concur.  