49 N.Y.2d 792 | NY | 1980
Memorandum.
The order of the Appellate Division should be modified by deleting therefrom the words "and complaint dismissed” and as modified affirmed on the memorandum of the Appellate Division, without costs. What was transferred to Albany Supreme Court by New York County Supreme Court was a motion made in the New York County action, which the court held was more properly the subject of an article 78 proceeding. The underlying action was not transferred and the record does not reveal whether it is still pending in New York County. It was, therefore, error on appeal from the judgment in the Albany County article 78 proceeding to dismiss the complaint in the New York County declaratory judgment action.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.
Order modified, without costs, in accordance with the memorandum herein and, as so modified, affirmed.
April 1, 1980
Motion to amend remittitur, considered as a motion to amend memorandum, granted to the extent that the first sentence of the memorandum is replaced with the following two sentences: The order of the Appellate Division is modified by deleting therefrom the words "and complaint dismissed” and inserting in lieu thereof the words "without prejudice to plaintiff raising the issues sought to be litigated in the article 78 proceeding in such other litigation as plaintiff may be advised to pursue, including, if it be still pending, the action originally brought in New York County.” As so modified the order is affirmed on the memorandum of the Appellate Division, without costs.
