Holz v Old Orchard Beach Taxpayers Assn., Inc.

Holz v Old Orchard Beach Taxpayers Assn., Inc. 2014 NY Slip Op 06756 Decided on October 3, 2014 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 3, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.
1036 CA 14-00094

[*1]THEODORE HOLZ AND LINDA HOLZ, PLAINTIFFS-APPELLANTS,

v

OLD ORCHARD BEACH TAXPAYERS ASSOCIATION, INC. AND RICHARD SCHARET, SR., DEFENDANTS-RESPONDENTS.

Appeal from a judgment (denominated order) of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.), entered July 16, 2013. The judgment granted the amended motion of defendants for summary judgment, denied the cross motion of plaintiffs for summary judgment and dismissed the complaint.

KELLY & KELLY ESQUIRES, PERRY (DEVON M. KELLY OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

DIMATTEO LAW OFFICE, WARSAW (DAVID M. ROACH OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reinstating the complaint insofar as it sought a declaration and granting judgment in favor of defendants as follows:

It is ADJUDGED and DECLARED that plaintiffs have acquired no title to the lands described in paragraph 39 of the verified complaint

and as modified the judgment is affirmed without costs.

Memorandum: Defendants are entitled to judgment in their favor for reasons stated in Supreme Court's decision. Because plaintiffs seek declaratory relief, however, "the proper course is not to dismiss the complaint [in its entirety] but rather to issue a declaration in favor of the defendants" (Maurizzio v Lumbermens Mut. Cas. Co. , 73 NY2d 951, 954). We therefore modify the judgment accordingly.

Entered: October 3, 2014

Frances E. Cafarell

Clerk of the Court