Shields v. City of Buffalo

206 A.D.2d 921, 616 N.Y.S.2d 293, 1994 N.Y. App. Div. LEXIS 7861

Opinion

Judgment unanimously modified on the law and as modified affirmed without costs and judgment granted in accordance with the following Memorandum: We agree with the reasoning in the decision at Supreme Court (Doyle, J.). The court, rather than dismissing the complaint, should have declared the rights of the parties (see, Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954; Pless v Town of Royalton, 185 AD2d 659, 660, affd 81 NY2d 1047). We modify the order appealed from, therefore, by reinstating the complaint and granting judgment declaring that the City of Buffalo was entitled to cease payments pursuant to General Municipal Law § 207-a when plaintiff reached the age of 62, the mandatory service retirement age applicable to him. (Appeal from Judgment of Supreme Court, Erie County, Doyle, J. —Declaratory Judgment.) Present—Balio, J. P., Lawton, Callahan, Doerr and Boehm, JJ.