Opinion
February 16, 1971
In an action inter alia to declare a separation agreement void, plaintiff appeals from so much of an order of the Supreme Court, Queens County, dated November 20, 1970, as denied his motion for summary judgment and granted summary judgment to defendants, dismissing the complaint. Order modified, on the law, by striking therefrom the decretal provisions which dismissed the causes of action in the complaint and by adding thereto a provision declaring that the separation agreement sued on is valid. As so modified, order affirmed insofar as appealed from, with $10 costs and disbursements to respondent Hockfeld (see opinion of the Special Term). In an action for a declaratory judgment the complaint should not be dismissed merely because the plaintiff is not entitled to the declaration sought by him. The court should make a declaration of the rights of the parties with respect to the subject matter of the litigation ( Lanza v. Wagner, 11 N.Y.2d 317, 334). Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.