        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

591
CA 15-01751
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.


AUSTIN HARVARD LLC,
PETITIONER-PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CITY OF CANANDAIGUA, AND DAVID FORREST,
CITY MANAGER OF CITY OF CANANDAIGUA,
RESPONDENTS-DEFENDANTS-RESPONDENTS.


CHARLES J. GENESE, WEBSTER, FOR PETITIONER-PLAINTIFF-APPELLANT.

MICHELE O. SMITH, CORPORATION COUNSEL OF CITY OF CANANDAIGUA,
CANANDAIGUA, FOR RESPONDENTS-DEFENDANTS-RESPONDENTS.


     Appeal from a judgment (denominated order) of the Supreme Court,
Ontario County (Craig J. Doran, A.J.), entered April 7, 2015 in a
hybrid CPLR article 78 proceeding and declaratory judgment action.
The judgment dismissed the petition-complaint.

     It is hereby ORDERED that said appeal insofar as it concerns the
CPLR article 78 proceeding is unanimously dismissed and the judgment
is modified on the law by reinstating the second cause of action and
denying plaintiff’s motion for summary judgment and as modified the
judgment is affirmed without costs in accordance with the following
memorandum: Petitioner-plaintiff (plaintiff) commenced this combined
CPLR article 78 proceeding and declaratory judgment action seeking,
inter alia, a declaration that it is unlawful for respondents-
defendants (defendants) to impose a fee equaling two-thirds of the
admission charges collected by plaintiff in the operation of its
annual arts festival at a public park. We note at the outset that, as
correctly set forth in the judgment on appeal, the parties “agree[d]
that the [a]rticle 78 claim is moot,” and the judgment thus dismissed
the proceeding to that extent. We therefore dismiss the appeal
insofar as it concerns the CPLR article 78 proceeding because
plaintiff is not aggrieved by that part of the judgment (see CPLR
5511; Husak v 45th Ave. Hous. Co., 52 AD3d 781, 782; Fuller v City of
Yonkers, 100 AD2d 926, 927).

     With respect to the declaratory judgment action, it is well
settled that “parties to a civil dispute are free to chart their own
litigation course” (Mitchell v New York Hosp., 61 NY2d 208, 214), and
“may fashion the basis upon which a particular controversy will be
resolved” (Cullen v Naples, 31 NY2d 818, 820). Here, the record
establishes that the parties charted a summary judgment course, and
                                 -2-                           591
                                                         CA 15-01751

Supreme Court’s bench decision reflects that the court denied
plaintiff’s motion for summary judgment seeking a declaration in the
second cause of action. The judgment, however, recites that the
complaint “is in all respects denied and the matter is dismissed,” and
“[w]here, as here, there is a conflict between [a judgment] and a
decision, the decision controls” (Wilson v Colosimo, 101 AD3d 1765,
1766 [internal quotation marks omitted]; see generally Del Nero v
Colvin, 111 AD3d 1250, 1253). We therefore modify the judgment to
conform to the court’s bench decision. On the merits, we conclude
that the court properly denied plaintiff’s motion for summary judgment
inasmuch as it failed to meet its initial burden of establishing its
entitlement to judgment as a matter of law (see generally Winegrad v
New York Univ. Med. Ctr., 64 NY2d 851, 853).




Entered:   July 8, 2016                         Frances E. Cafarell
                                                Clerk of the Court
