Magnotta v. Parkway Fleetwood Building, Inc.

277 A.D.2d 896

Opinion

In an action for a declaratory judgment and for injunctive relief, defendant appeals from an order which denies its cross motion, under rule 106 of the Rules of Civil Practice, to dismiss the complaint. Order, insofar as appealed from, reversed on the law, with $10 costs and disbursements, and the motion granted, without costs. An action for declaratory judgment may not be entertained where the relief sought (if the grounds therefor, legal or equitable, have merit) may be had in a pending action by way of defense. (Woollard v. Schaffer Stores Co., 272 N. Y. 304, 311; Civ. Prae. Act, § 1425.) The County Court of Westchester County has jurisdiction of an equitable defense to a summary proceeding. (Civ. Prae. Act, §§ 69, 1425; Matter of Mawson V. Wermuth, 182 N. Y. 234; Goldsmith v. Deitchman, 69 N. Y. S. 2d 148; Zunel v. Kureh, 190 N. Y. S. 642.) The appellant has made a stipulation in conformity with the foregoing. Carswell, Acting P. J., Johnston, Adel, Wenzel and MaeCrate, JJ., concur.