           SUPREME COURT OF THE STATE OF NEW YORK
            Appellate Division, Fourth Judicial Department
579
CA 10-01996
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


EARTH ENERGY CONSULTANTS, LLC,
PLAINTIFF-APPELLANT,

                      V                             MEMORANDUM AND ORDER

SENECA COUNTY INDUSTRIAL DEVELOPMENT AGENCY,
SENECA COUNTY ECONOMIC DEVELOPMENT CORPORATION,
AND ROBERT J. ARONSON, EXECUTIVE DIRECTOR,
SENECA COUNTY INDUSTRIAL DEVELOPMENT AGENCY,
DEFENDANTS-RESPONDENTS.


ZDARSKY SAWICKI & AGOSTINELLI LLP, BUFFALO (DONALD G. POWELL OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

HARRIS BEACH PLLC, PITTSFORD (DALE A. WORRALL OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Seneca County
(Dennis F. Bender, A.J.), entered June 2, 2010 in a declaratory
judgment action. The judgment granted the motion of defendants for
summary judgment dismissing the complaint and denied the cross motion
of plaintiff to compel disclosure.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the provision dismissing
the complaint and granting judgment in favor of defendants as follows:

          It   is ADJUDGED and DECLARED that defendants have no
     duty to   execute or to record an assignment to plaintiff of a
     portion   of the overriding royalty interest in any oil and/or
     natural   gas produced from the subject property

and as modified the judgment is affirmed without costs.

     Memorandum: We conclude that Supreme Court properly resolved the
merits of the action in favor of defendants for the reasons stated in
its decision. The court erred, however, in granting judgment to
defendants dismissing the complaint rather than declaring the rights
of the parties (see Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951,
954). We therefore modify the judgment accordingly.


Entered:   May 6, 2011                            Patricia L. Morgan
                                                  Clerk of the Court
