Donaldson Acoustics Co. v. Newsday, Inc.

— In an action to declare that defendant is obligated to pay plaintiff moneys owed pursuant to a subcontract, plaintiff appeals from an order of the Supreme Court, Nassau County (Wager, J.), entered March 25, 1981, which granted defendant’s motion for summary judgment and denied its cross motion for summary judgment. Order modified, on the law, by deleting the provision which dismissed the complaint, and substituting therefor a provision declaring that defendant is not obligated or bound to pay plaintiff pursuant to the subcontract entered into between plaintiff and Peck-Morse/Diesel. As so modified, order affirmed, with $50 costs and disbursements to defendant. Special *899Term correctly determined that neither the construction contract nor the subcontract contains any language which can be interpreted as creating an agency relationship or privity of contract between plaintiff and defendant. However, the court erred when it dismissed the complaint in this action for a declaratory judgment (see Lanza v Wagner, 11 NY2d 317, 334, app dsmd 371 US 74). Even though plaintiff is not entitled to the declaration which it sought, Special Term, on defendant’s motion for summary judgment, should have made a declaration (see Arrow Louren & Damper Corp. v Newsday, Inc., 86 AD2d 513). Damiani, J. P., Mangano, Gibbons and Boyers, JJ., concur.