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Cindy E. Culverwell v. Anthony J. Villella, as Sheriff of Niagara County
Order unanimously reversed, with costs, and complaint reinstated. Memorandum: Plaintiff’s action for declaratory judgment should not have been dismissed on defendant’s oral cross motion without notice to plaintiff. Additionally, “[sjince plaintiff sought a declaratory judgment, the complaint should not have been dismissed without declaring the rights of the parties (Lanza v Wagner, 11 NY2d 317, 334)” (Mazzo v County of Monroe, 58 AD2d 1017).
(Appeal from order of Supreme Court, Erie County, Mintz, J. — dismiss complaint.) Present — Simons, J. P., Callahan, Denman, Moule and Schnepp, JJ.