THEODORE HOLZ AND LINDA HOLZ PLAINTIFFS APPELLANTS v. OLD ORCHARD BEACH TAXPAYERS ASSOCIATION INC AND RICHARD SCHARET SR DEFENDANTS RESPONDENTS (2014)

Supreme Court, Appellate Division, Fourth Department, New York.

THEODORE HOLZ AND LINDA HOLZ, PLAINTIFFS–APPELLANTS, v. OLD ORCHARD BEACH TAXPAYERS ASSOCIATION, INC. AND RICHARD SCHARET, SR., DEFENDANTS–RESPONDENTS.

CA 14–00094

Decided: October 03, 2014

PRESENT: SMITH, J.P., PERADOTTO, VALENTINO, WHALEN, AND DEJOSEPH, JJ.

KELLY & KELLY ESQUIRES, PERRY (DEVON M. KELLY OF COUNSEL), FOR PLAINTIFFS–APPELLANTS. DIMATTEO LAW OFFICE, WARSAW (DAVID M. ROACH OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.

MEMORANDUM AND ORDER

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

Frances E. Cafarell

Clerk of the Court

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