Opinion
January 29, 1982
Appeal from the Supreme Court, Erie County, Mintz, J.
Present — Simons, J.P., Callahan, Denman, Moule and Schnepp, JJ.
Order unanimously reversed, with costs, and complaint reinstated. Memorandum: Plaintiff's action for declaratory judgment should not have been dismissed on defendant's oral cross motion without notice to plaintiff. Additionally, "[s]ince plaintiff sought a declaratory judgment, the complaint should not have been dismissed without declaring the rights of the parties ( Lanza v. Wagner, 11 N.Y.2d 317, 334)" ( Mazzo v. County of Monroe, 58 A.D.2d 1017).