Holz v. Old Orchard Beach Taxpayers Ass'n

Appeal from a judgment (denominated order) of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered July 16, 2013. The judgment granted the amended motion of defendants for summary judgment, denied the cross motion of plaintiffs for summary judgment and dismissed the complaint.

It is hereby ordered that the judgment so appealed from is unanimously modified on the law by reinstating the complaint insofar as it sought a declaration and granting judgment in favor of defendants as follows:

It is adjudged and declared that plaintiffs have acquired no title to the lands described in paragraph 39 of the verified complaint and as modified the judgment is affirmed without costs.

Memorandum: Defendants are entitled to judgment in their favor for reasons stated in Supreme Court’s decision. Because plaintiffs seek declaratory relief, however, “the proper course is not to dismiss the complaint [in its entirety], but rather to issue a declaration in favor of the defendants” (Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]). We therefore modify the judgment accordingly.

Present — Smith, J.E, Peradotto, Valentino, Whalen and DeJoseph, JJ.