Simco Retail Stores v. Gross Construction Co.

Action for a declaratory judgment to declare the rights of the parties under a lease, with especial reference to the effect thereon of the emergency rent laws (L. 1945, ch. 314, as amd. by L. 1946, ch. 273), particularly section 13. Order denying plaintiff’s motion for a temporary injunction and granting defendant’s cross motion to dismiss the complaint on the merits and for summary judgment, and the judgment entered pursuant thereto, reversed on the law and the facts, with $10 costs and disbursements, plaintiff’s motion granted, and defendant’s cross motion denied, with $10 costs, on condition that plaintiff furnish security in an amount to be agreed on by the parties or determined on the settlement of the order hereon. The defendant’s time to answer is extended until ten days after the entry of the order hereon. The dismissal of the complaint was an improvident exercise of discretion under the rule obtaining in this court in respect of actions for declaratory judgment to resolve divergent claims of parties under leases, in which it has been held that controversies of the character set out in the complaint herein are peculiarly the proper subject of determination in an action for a declaratory judgment. (9506 Ditmas Ave. Corp. v. Brescia, 270 App. Div. 1031; Levco Theatre Corp. V. Mandy Amusement Corp., 262 App. Div. 776; Foreman v. Flaine Beatty Corp., 240 App. Div. 490; Trustees of Columbia University v. Kalvin, 225 App. Div. 654; Baynolds V. Browning, King & Co., 217 App. Div. 443, affd. 245 N. Y. 623; Woollard V. Schaffer Stores Co., 272 N. Y. 304; Speyer V. Hamersley, 274 N. Y. 478; Dun & Bradstreet, Inc., v. City of New Torlc, 276 N. Y. 198; Amusement Enterprises v. Fielding, 189 Mise. 625; Beiner V. Prudential Ins. Co. of America, 268 App. Div. 800; German Masonic Temple [826] Assn. v. City of New York, 279 N. Y. 452; Borchard on Declaratory Judgments [2d ed.], pp. 603, 329-340). Lewis, P. J., Carswell, Johnston, Adel and Sneed, JJ., concur. Settle order on notice.