—[*1] Robert A. Fiordaliso, Buffalo, for petitioner-plaintiff-appellant.

Phyllis M. Todoro, Buffalo, for respondents-defendants-respondents.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered January 31, 2007 in a CPLR article 78 proceeding and declaratory judgment action. The judgment, among other things, dismissed the petition-complaint.

It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating the provision dismissing that part of the petition-complaint seeking a declaration and granting judgment in favor of respondents-defendants as follows: "It is ADJUDGED and DECLARED that Local Law No. 2 (2006) of the Town of Elma was effective December 8, 2006 and as modified the judgment is affirmed without costs."

Memorandum: Petitioner-plaintiff (petitioner) commenced this hybrid CPLR article 78 proceeding/declaratory judgment action challenging the authority of respondent-defendant Town of Elma to adopt Local Law No. 2 (2006) abolishing the office of the Receiver of Taxes and Assessments for the Town of Elma, to which he was elected. According to petitioner, Local Law No. 2 could not take effect until his four-year term of office had expired. We agree with Supreme Court that petitioner's contention is without merit. Local Law No. 2 was properly effective on December 8, 2006, the date on which it was filed in the office of the secretary of state (see Municipal Home Rule Law § 27 [3]), despite the fact that petitioner's term of office was thereby abridged (see 1979 Ops St Comp No. 79-224; 1978 Ops St Comp No. 78-510).

We reject the further contention of petitioner that he is entitled to legal fees in the prosecution of this proceeding/action. "Notwithstanding lack of specific statutory authority, a municipal board or officer possesses implied authority to employ counsel in the good faith prosecution or defense of an action undertaken in the public interest, and in conjunction with its [*2]or his [or her] official duties where the municipal attorney refused to act, or was incapable of, or was disqualified from, acting" (Cahn v Town of Huntington, 29 NY2d 451, 455 [1972]; see Matter of Hill v County of Sullivan, 14 AD3d 744, 746 [2005]). Here, petitioner failed to establish that the prosecution of this proceeding/action was "in conjunction with . . . his official duties" (Cahn, 29 NY2d at 455; cf. Matter of Wilson v Allegany County, 175 AD2d 645 [1991]).

We conclude, however, that the court erred in dismissing that part of the petition-complaint seeking a declaration and in failing to issue a declaration (see Matter of Lindberg v Town of Manlius Planning Bd., 41 AD3d 1231 [2007]). We therefore modify the judgment accordingly. Present—Gorski, J.P., Smith, Centra, Lunn and Peradotto, JJ.