CUMMINGS v. WATERTOWN LODGE NO 496 BENEVOLENT AND PROTECTIVE ORDER OF ELKS OF UNITED STATES OF AMERICA INC (1999)

 We agree with Supreme Court that Watertown Lodge No. 496 Benevolent and Protective Order of Elks of the United States of America, Inc. and Exalted Ruler John P. Bruce (defendants) did not violate Executive Law § 296(2)(a) in denying plaintiffs' application for membership because the Elks Lodge is not a place of public accommodation, but rather is “distinctly private” (Executive Law § 292[9];  see, Gifford v. Guilderland Lodge, No. 2480, 178 Misc.2d 707, 710, 681 N.Y.S.2d 194).   The court erred, however, in granting the motion of defendants insofar as it sought dismissal of the complaint against them rather than declaring the rights of the parties (see, Maurizzio v. Lumbermens Mut. Cas. Co., 73 N.Y.2d 951, 954, 540 N.Y.S.2d 982, 538 N.E.2d 334;  Pless v. Town of Royalton, 185 A.D.2d 659, 660, 585 N.Y.S.2d 650, affd. 81 N.Y.2d 1047, 601 N.Y.S.2d 455, 619 N.E.2d 392).   We therefore modify the judgment by reinstating the complaint and granting judgment in favor of defendants declaring that defendants did not violate Executive Law § 296(2)(a).

Judgment unanimously modified on the law and as modified affirmed without costs and judgment granted.

MEMORANDUM: