Earth Energy Consultants v. Seneca County Industrial Development Agency

84 A.D.3d 1743, 922 N.Y.S.2d 838

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 6, 2011
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Seneca County (Dennis F. Bender, A.J.), entered June 2, 2010 in a declaratory judgment action. The judgment granted the motion of defendants for summary judgment dismissing the complaint and denied the cross motion of plaintiff to compel disclosure.

It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating the provision dismissing the complaint and granting judgment in favor of defendants as follows:

“It is adjudged and declared that defendants have no duty to execute or to record an assignment to plaintiff of a portion of the overriding royalty interest in any oil and/or natural gas produced from the subject property and as modified the judgment is affirmed without costs.

Memorandum: We conclude that Supreme Court properly resolved the merits of the action in favor of defendants for the reasons stated in its decision. The court erred, however, in granting judgment to defendants dismissing the complaint rather than declaring the rights of the parties (see Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954 [1989]). We therefore modify the judgment accordingly. Present — Smith, J.P, Peradotto, Lindley, Sconiers and Martoche, JJ.