Opinion
April 3, 1989
Appeal from the Supreme Court, Kings County (I. Aronin, J.).
Ordered that the judgment is modified, by (1) adding thereto a provision declaring that the deed dated November 6, 1970, is valid and (2) adding to the fifth decretal paragraph thereof, before the phrase "dismissing the complaint," the words "otherwise"; as so modified, the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
We discern no basis for disturbing the trial court's determination (see, CPLR 4102 [c]) that the plaintiff waived her right (see, CPLR 4101) to a jury trial. However, although the record amply supports the trial court's determination that the 1970 deed, by which the subject premises were conveyed from the plaintiff to the defendant O'Toole and his wife, now deceased, was valid, it should, however, have made a declaration to that effect rather than dismissing the complaint in its entirety (see, CPLR 3001; cf., RPAPL 1521; Lanza v Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901; Orrino v. Norbon Homes, 35 A.D.2d 732). We modify the judgment accordingly.
We have examined the plaintiff's remaining contentions and find them to be without merit. Mollen, P.J., Kooper, Sullivan and Harwood, JJ., concur.