Opinion
856 CA 19-02291
11-13-2020
UP STATE TOWER CO., L.L.C., and Buffalo-Lake Erie Wireless Systems Co., L.L.C., Doing Business as Blue Wireless, Plaintiffs-Appellants, v. TOWN OF CHEEKTOWAGA, Defendant-Respondent.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (ANNE K. BOWLING OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. HODGSON RUSS LLP, BUFFALO (CHARLES W. MALCOMB OF COUNSEL), FOR DEFENDANT-RESPONDENT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (ANNE K. BOWLING OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
HODGSON RUSS LLP, BUFFALO (CHARLES W. MALCOMB OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, CURRAN, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by reinstating the complaint to the extent that it seeks declarations in the fourth and sixth causes of action and granting judgment in favor of defendant as follows:
It is ADJUDGED and DECLARED that there is no agreement between the parties, and as modified the order and judgment is affirmed without costs.
Memorandum: We agree with Supreme Court that plaintiffs are not entitled to the relief sought in the complaint. We note, however, that the court erred in dismissing the complaint to the extent that it seeks declarations in the fourth and sixth causes of action and in failing to declare 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 [1989] ; Ives Hill Country Club, Inc. v. City of Watertown , 185 A.D.3d 1494, 1496-1497, 128 N.Y.S.3d 732 [4th Dept. 2020] ; Ames v. County of Monroe , 162 A.D.3d 1724, 1725, 80 N.Y.S.3d 774 [4th Dept. 2018] ). We therefore modify the order and judgment accordingly.