Hines v. Driffin

252 A.D.2d 571, 675 N.Y.S.2d 301, 1998 N.Y. App. Div. LEXIS 8632

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 27, 1998
• Status: Published

Opinion

—In an action, inter alia, in effect for a declaration that the plaintiff had an absolute and unencumbered title to the subject real property, the plaintiff appeals from so much of a judgment of the Supreme Court, Queens County (Kassoff, J.), dated July 24, 1997, as dismissed her complaint.

Ordered that the judgment is modified by adding thereto a provision declaring that the plaintiff had no title to the subject real property; as so modified, the judgment is affirmed insofar as appealed from, with costs to the respondent Greenpoint Savings Bank.

Taking into account that the Trial Judge in this nonjury trial had the advantage of observing the witnesses testify, we agree that the defendants were entitled to judgment in their favor (see, Northern Westchester Professional Park Assocs. v Town of Bedford, 60 NY2d 492, 499; Universal Leasing Servs. v Flushing Hae Kwan Rest., 169 AD2d 829, 830).

The plaintiffs remaining contentions are without merit.

We note that since this is, in effect, a declaratory judgment action, the Supreme Court should have directed the entry of a declaration in favor of the defendants rather than dismissal of the complaint (see, Lanza v Wagner, 11 NY2d 317, 334, cert denied 371 US 901). Bracken, J. P., Thompson, Pizzuto and Altman, JJ., concur.