Up State Tower Co., L.L.C. v. Town of Cheektowaga

Up State Tower Co., L.L.C. v Town of Cheektowaga (2020 NY Slip Op 06637)

Up State Tower Co., L.L.C. v Town of Cheektowaga

2020 NY Slip Op 06637

Decided on November 13, 2020

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 13, 2020 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., SMITH, CURRAN, TROUTMAN, AND DEJOSEPH, JJ.

856 CA 19-02291

[*1]UP STATE TOWER CO., L.L.C., AND BUFFALO-LAKE ERIE WIRELESS SYSTEMS CO., L.L.C., DOING BUSINESS AS BLUE WIRELESS, PLAINTIFFS-APPELLANTS,

v

TOWN OF CHEEKTOWAGA, DEFENDANT-RESPONDENT.

RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (ANNE K. BOWLING OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

HODGSON RUSS LLP, BUFFALO (CHARLES W. MALCOMB OF COUNSEL), FOR DEFENDANT-RESPONDENT.

Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Deborah A. Chimes, J.), entered November 18, 2019. The order and judgment granted the motion of defendant to dismiss the complaint and dismissed the complaint.

It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by reinstating the complaint to the extent that it seeks declarations in the fourth and sixth causes of action and granting judgment in favor of defendant as follows:

It is ADJUDGED and DECLARED that there is no agreement between the parties,

and as modified the order and judgment is affirmed without costs.

Memorandum: We agree with Supreme Court that plaintiffs are not entitled to the relief sought in the complaint. We note, however, that the court erred in dismissing the complaint to the extent that it seeks declarations in the fourth and sixth causes of action and in failing to declare the rights of the parties (see Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]; Ives Hill Country Club, Inc. v City of Watertown, 185 AD3d 1494, 1496-1497 [4th Dept 2020]; Ames v County of Monroe, 162 AD3d 1724, 1725 [4th Dept 2018]). We therefore modify the order and judgment accordingly.

Entered: November 13, 2020

Mark W. Bennett

Clerk of the Court