Appeal by plaintiff from so much of an order of the Justice Court, Town of Yorktown, Westchester County (J. Cohen, J.), entered January 14, 2003, as granted summary judgment in favor of defendant dismissing the action without prejudice. Cross appeal by defendant from so much of said order as granted plaintiffs motion for summary judgment dismissing defendant's counterclaim.

Order unanimously modified by providing that plaintiff's motion is granted to the extent of dismissing defendant's counterclaim without prejudice; as so modified, affirmed without costs.

Although we are in agreement with plaintiff, that the institution of this action to recover the sum of $400, the total amount paid to defendant toward the latter's $4,800 assessment to cover the cost of siding the condominium units, does not, under the circumstances herein, constitute an improper splitting of the cause of action, it is our opinion, inasmuch as the court's decision will affect the validity of the assessment and all future payments due, that the relief sought is in the nature of a declaratory judgment (see CPLR 3001) or an article 78 proceeding to ascertain whether the action of defendant was arbitrary and capricious (see CPLR 7802 (a); 7803; see also Levandusky v One Fifth Ave. Ant. Corp., 75 NY2d 530, 534, 542 [1990]; Matter of Vacca v Board of Mgrs. of Primrose Lane Condominium, 251 AD2d 674 [1998]; Hession v Village of Ossining, 118 Misc 2d 148 [1983]; see also 29 NY Jur 2d, Courts and Judges § 857). In addition, it is our opinion that the court's dismissal of defendant's counterclaim should be without prejudice.
Decision Date: December 22, 2003