Opinion
December 17, 1982
Appeal from the Supreme Court, Erie County, J.L. Kane, J.
Present — Hancock, Jr., J.P., Doerr, Denman, Boomer and Schnepp, JJ.
Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Special Term correctly held that plaintiff was not entitled to the declarations sought (see Matter of Keleher v American Airlines, 91 A.D.2d 866). The proper procedure, however, is a judgment declaring the rights of the parties rather than a dismissal of the action (see Lanza v Wagner, 11 N.Y.2d 317; Miller v Braun, 89 A.D.2d 787). Therefore, the third ordering paragraph of the order appealed from is modified to provide that plaintiff is not entitled to the declaration requested.