Opinion
March 14, 1966
In two separate actions for a declaratory judgment, each instituted by a different plaintiff against the same defendant, the plaintiff in each action appeals upon a consolidated record from the order and judgment (one paper) of the Supreme Court, Nassau County, made in its action (the orders and judgments were entered: in the first above-entitled action on June 11, 1965 and in the other action on July 1, 1965), which denied its motion for summary judgment and, on defendant's motion, dismissed the complaint (in each action), "without prejudice to the institution of an Article 78 proceeding in Albany County." On each appeal, order and judgment modified by (a) striking out (1) the provision granting defendant's motion and dismissing the complaint and (2) the quoted words above; (b) substituting therefor provisions (1) denying defendant's motion and (2) directing that the action shall be henceforth treated as a proceeding under article 78 of the CPLR; and (c) adding a provision that the proceeding is transferred to the Supreme Court, Albany County, for disposition according to law. As so modified, each order and judgment affirmed, without costs. We agree with Special Term that an action for a declaratory judgment does not lie where another remedy affords full relief (cf. Newburger v. Lubell, 257 N.Y. 383, 386; Goodman Co. v. New York Tel. Co., 309 N.Y. 258, 266; Adams v. Milliken, 278 App. Div. 791; see Matter of Gimprich v. Board of Educ., 306 N.Y. 401). Under the provisions of the CPLR, however, an action should not be dismissed because of its improper form, when the same relief is available in a special proceeding (CPLR 103, subd. [c]; 3017; cf. Matter of Nowak v. Wereszynski, 21 A.D.2d 427, 430; 1 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 401.03). Accordingly, the actions should be treated as special proceedings under article 78 of the CPLR and transferred to the Supreme Court, Albany County (CPLR 506, subd. [b], par. 2). Brennan, Acting P.J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.