31 A.D.2d 916 | N.Y. App. Div. | 1969
Judgment unanimously modified, >on the law, to provide that the dismissal of the complaint is without prejudice and otherwise affirmed, without costs and without disbursements. There is a question as to whether the judgment of dismissal is in effect a judgment on ‘the merits. (See 5 Weinstein-Korn-Miller, N. Y. Civ. Phae., par. 5013.04.) Furthermore, since this action is seemingly alleged as one seeking a declaratory judgment, the dismissal of the complaint without a declaration of the rights of the parties may import nothing more than that, because of the lack of a justiciable controversy or otherwise, the plaintiff had no standing to maintain the action, if the action is maintainable and there is no dispute as fo the facts, the judgment rendered in the determination of a motion for summary judgment should declare the rights of the panties. (See Lanza v. Wagner, 11 N Y 2d 317; Town of Harrison v. County of Westchester, 13 A D 2d 708; Law Research Sen. v. Honeywell, Inc., 31 A D 2d 900.) “ The