Special Term transferred this proceeding to this court upon the ground that the petition contains allegations that certain of respondents' determinations are not supported by substantial evidence. Respondents have not yet answered the petition; rather, they have moved to dismiss upon objections in point of law which do not involve the merits. In our view, transfer was improper and, after passing on the objections in point of law, we remit the matter to Special Term. Unless an issue specified in CPLR 7803 (subd 4) is raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding (CPLR 7804, subd [g]). The mere fact that the petition alleges the lack of substantial evidence supporting the determination is not dispositive, for the question of whether an article 78 proceeding must be transferred to the Appellate Division is one to be decided by Special Term, not by petitioners (Matter of O'Brien v Biggane, 85 Misc.2d 424, affd 48 A.D.2d 1018; cf. Matter of Daigle v New York State Liq. Auth., 35 A.D.2d 901). An issue specified in CPLR 7803 (subd 4) arises only where a quasi-judicial hearing has been held and evidence taken pursuant to law (Matter of Colton v Berman, 21 N.Y.2d 322, 329). Such a hearing would ordinarily be conducted in accordance with the procedural requirements of article 3 of the State Administrative Procedure Act (see Siegel, New York Practice, § 560, p 783). Here, the hearings held by respondents were public hearings for informational purposes (see General City Law, § 32; 6 NYCRR 617.4 [c] ), and they clearly were not the type of evidentiary hearing referred to in CPLR 7803 (subd 4). In deciding whether an environmental impact statement was required and whether to approve the Karner Meadows subdivision plat, respondent environmental quality review board and respondent planning board were acting in a plenary administrative capacity (Bailey v Smith, 75 A.D.2d 573), and in amending the zoning ordinance, respondent common council acted in its legislative capacity (Matter of Tantalo v Zoning Bd. of Appeals of Town of Seneca Falls, 43 A.D.2d 793, 794). Accordingly, an issue specified in CPLR 7803 (subd 4) has not been raised by petitioners' challenge to these determinations, and transfer of this proceeding, therefore, was not authorized. Moreover, even if transfer had been authorized, the better practice would have been for Special Term to rule on the objections in point of law raised in respondents' motion to dismiss made before the answer had been served (McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 7804:9, pp 507-508). Contrary to petitioners' suggestion, this court has not previously ruled, either directly or indirectly, on the
Motion to dismiss petition denied, with $20 costs, and matter remitted to Special Term for further proceedings not inconsistent herewith.