Ted's Jumbo Red Hots, Inc. v. Benderson Development Co.

Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: In this action seeking a preliminary injunction and a declaratory judgment, we conclude that the record supports the court’s declaration that plaintiff is not entitled to renew its lease with defendant. Because the complaint seeks, inter alia, a declaratory judgment, the court erred in granting in its entirety the cross motion of defendant seeking dismissal of the complaint (see, Tumminello v Tumminello, 204 AD2d 1067). We modify the order and judgment on appeal, therefore, by granting in part the cross motion of defendant and by reinstating that part of the complaint seeking a declaratory judgment. (Appeal from Order and Judgment of Supreme Court, Erie County, Doyle, J.—Declaratory Judgment.) Present—Pine, J. P., Lawton, Callahan, Davis and Boehm, JJ.