EARTH ENERGY CONSULTANTS LLC PLAINTIFF APPELLANT v. SENECA COUNTY INDUSTRIAL DEVELOPMENT AGENCY SENECA COUNTY ECONOMIC DEVELOPMENT CORPORATION AND ROBERT ARONSON EXECUTIVE DIRECTOR SENECA COUNTY INDUSTRIAL DEVELOPMENT AGENCY DEFENDANTS RESPONDENTS (2011)

MEMORANDUM AND ORDER

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 N.Y.2d 951, 954).   We therefore modify the judgment accordingly.

Patricia L. Morgan

Clerk of the Court