Opinion
September 29, 2000.
Appeal from Judgment of Supreme Court, Onondaga County, Nicholson, J. — CPLR art 78.
PRESENT: PIGOTT, JR., P. J., GREEN, HAYES, KEHOE AND LAWTON, JJ.
Judgment unanimously reversed on the law without costs and petition dismissed.
Memorandum:
Petitioners commenced this proceeding challenging the determination of respondent Racing and Wagering Board of the State of New York (Board) on their appeal from the denial of their applications for amendments to their bingo licenses by respondent City of Syracuse (City) ( see, General Municipal Law § 493). Because the Board remitted the matter to the City for further proceedings, the Board's determination is not final and judicial review pursuant to CPLR article 78 is not available ( see, CPLR 7801; Matter of Martin v. Ambach, 85 A.D.2d 869, 870, affd 57 N.Y.2d 1001; Matter of Livingston Assocs. v. State of New York Div. of Hous. Community Renewal, 220 A.D.2d 504, 505; Matter of Incorporated Vil. of Hempstead v. Public Empl. Relations Bd., 137 A.D.2d 378, 381, lv denied 72 N.Y.2d 808). Supreme Court therefore should have dismissed the petition on that ground.
The court further erred in converting part of the proceeding to an action for a declaratory judgment and granting declaratory relief. A declaratory judgment action is not the appropriate vehicle to challenge the Board's determination ( see, Greystone Mgt. Corp. v. Conciliation Appeals Bd., 62 N.Y.2d 763, 765; Town of Fishkill v. Royal Dutchess Props., 231 A.D.2d 511, 512; DiMiero v. Livingston-Steuben-Wyoming County Bd. of Coop. Educ. Servs., 199 A.D.2d 875, lv denied 83 N.Y.2d 756), and there was no need for declarations regarding petitioners' alleged entitlement to the requested license amendments ( see, Matter of Coleman v. Wing, 229 A.D.2d 1011, lv denied 89 N.Y.2d 802; Matter of Church v. Wing, 229 A.D.2d 1019, 1020). Finally, we reject petitioners' contention that the Board lacks standing to appeal from the judgment ( see, 10 Carmody-Wait 2d, N Y Prac § 70:115; see also, Matter of Commco, Inc. v. Amelkin, 62 N.Y.2d 260, 266-267).