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

1036
CA 14-00094
PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


THEODORE HOLZ AND LINDA HOLZ,
PLAINTIFFS-APPELLANTS,

                     V                              MEMORANDUM AND ORDER

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


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

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

     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
