Gagliardi v. Village of Pawling, 18 F.3d 188, 191-93 (2d Cir.1994). In particular, the district court was correct in finding that OLA had ample procedural notice and a full opportunity to be heard in connection with the development of the Master Plan and the enactment of zoning ordinances which implemented that plan. More importantly, we agree that OLA had no vested right to approval of its plans for the project. Much of the delay attributed by OLA was actually its own; first, in submitting its application and, later, in responding to the consultant’s legitimate inquiries concerning the plans filed. No effort was made by OLA to seek available judicial review by way of an Article 78 or declaratory judgment action. See Torsoe Bros. Constr. Corp., 120 A.D.2d at 739, 502 N.Y.S.2d at 788 (<HOLDING>); see also Kamhi v. Town of Yorktown, 141
holding that if a motion implicates the merits of a cause of action the district court should find jurisdiction exists and treat the objection as a direct attack on the merits of the plaintiffs case holding that a litigant has standing to challenge the constitutionality of a statute if the law is unconstitutional as applied to that particular litigant recognizing in the context of a petition for a writ of mandamus that although the district court retained jurisdiction over the case following the governments mandamus petition the district court justifiably could defer trial until resolution of the appellate proceedings had the government prevailed on the merits of the mandamus petition  the trial strategies of the government as well as the defense would surely have been altered holding that although an article 78 proceeding is not the proper vehicle to challenge the constitutionality of town legislative enactments the court would treat the portion of the petition which sought a declaration that a town law was unconstitutional as a declaratory judgment action and thereby dispose of the proceedings on the merits holding that an offender convicted under the bestiality portion of the criminal sodomy statute does not have standing to challenge the constitutionality of die portion of the statute that criminalizes homosexual conduct