Opinion
05-05-2017
In the Matter of Arbitration Between CITY OF BUFFALO, Petitioner–Respondent, and BRAND–ON SERVICES, INC., Respondent. Morton H. Wittlin, Intervenor–Plaintiff–Appellant.
Freid and Klawon, Williamsville (Adam B. Conners of Counsel), for intervenor-plaintiff-appellant. Timothy A. Ball, Corporation Counsel, Buffalo (David M. Lee of Counsel), for petitioner-respondent.
Freid and Klawon, Williamsville (Adam B. Conners of Counsel), for intervenor-plaintiff-appellant.
Timothy A. Ball, Corporation Counsel, Buffalo (David M. Lee of Counsel), for petitioner-respondent.
MEMORANDUM:
Intervenor-plaintiff Morton H. Wittlin commenced this action against petitioner, the City of Buffalo (City), seeking a declaration that he has a valid security interest in certain floating docks in the Erie Basin Marina. The City moved to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action and for a declaration that ownership of the floating docks is free and clear of any right or interest possessed by Wittlin. Supreme Court granted the City's motion, dismissed the complaint, and made the declaration sought by the City.
As a preliminary matter, we note that because this is a declaratory judgment action, the court erred in dismissing the complaint (see Tumminello v. Tumminello, 204 A.D.2d 1067, 1067, 614 N.Y.S.2d 963 ; see generally Maurizzio v. Lumbermens Mut. Cas. Co., 73 N.Y.2d 951, 954, 540 N.Y.S.2d 982, 538 N.E.2d 334 ). In any event, we conclude that the court erred in granting the substantive relief sought by the City. Contrary to the City's view, its evidentiary submissions do not conclusively establish that the City owned the docks in 2009 and that Wittlin does not have a valid security interest in the docks (see Donald Braasch Constr. Inc. v. State Ins. Fund, 98 A.D.3d 1302, 1302–1304, 951 N.Y.S.2d 621 ; Pittsford Plaza Co. LP v. TLC W. LLC, 45 A.D.3d 1272, 1273–1274, 844 N.Y.S.2d 814 ; see generally Fillman v. Axel, 63 A.D.2d 876, 876, 405 N.Y.S.2d 471 ).
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.
WHALEN, P.J., CARNI, NEMOYER, CURRAN, and TROUTMAN, JJ., concur.