Lep Transport, Inc. v. Weather Gay International Inc.

38 A.D.2d 802, 328 N.Y.S.2d 809, 1972 N.Y. App. Div. LEXIS 5384

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1972
• Status: Published

Opinion

Order, Supreme Court, New York County, entered on June 11, 1971, denying plaintiff’s motion for a preliminary injunction and granting defendants’ cross motion to dismiss the complaint for failure to state a cause of action, unanimously modified, on the law, to delete dismissal of the complaint and to direct judgment for the defendants declaring that plaintiff enjoys no lien superior to the lien of defendant Taleott, and otherwise affirmed, without prejudice to commencement of any action for money damages that plaintiff may be advised to bring. Respondents shall recover of appellant $50 costs and disbursements of this appeal. We agree with the conclusions reached by Special Term. However, we have repeatedly held that in an action for a declaratory judgment the complaint should not be dismissed if a proper ease is made out for a declaration of rights. Special Term should have made a declaration of the rights of the parties as to the subject matters of the litigation, as indicated above (Lanza v. Wagner, 11 N Y 2d 317; New York Sporting Arms Assn. v. City of New York, 31 A D 2d 793, and cases cited therein.) Concur — Markewich, J. P., Nunez, Kupferman, Murphy and Steuer, JJ.