Opinion
June 9, 1995
Appeal from the Supreme Court, Erie County, Doyle, J.
Present — Pine, J.P., Lawton, Callahan, Davis and Boehm, JJ.
Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: In this action seeking a preliminary injunction and a declaratory judgment, we conclude that the record supports the court's declaration that plaintiff is not entitled to renew its lease with defendant. Because the complaint seeks, inter alia, a declaratory judgment, the court erred in granting in its entirety the cross motion of defendant seeking dismissal of the complaint (see, Tumminello v. Tumminello, 204 A.D.2d 1067). We modify the order and judgment on appeal, therefore, by granting in part the cross motion of defendant and by reinstating that part of the complaint seeking a declaratory judgment.