The Treatment of Pre-Answer Motions to Dismiss an Action for a Declaratory Judgment Explained
The Second Department explained how pre-answer motions to dismiss are handled in the context of an action for a declaratory judgment:
Generally speaking, ” [a] motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'” … . As such, “where a cause of action is sufficient to invoke the court’s power to render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy’ (CPLR 3001; see CPLR 3017[b]), a motion to dismiss that cause of action should be denied” … .
Upon a motion to dismiss for failure to state a cause of action, a court may reach the merits of a properly pleaded cause of action for a declaratory judgment where ” no questions of fact are presented [by the controversy]'” … . Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action “should be taken as a motion for a declaration in the defendant’s favor and treated accordingly” … . North Oyster Bay Baymen’s Assn. v Town of Oyster Bay, 2015 NY Slip Op 06225, 2nd Dept 7-22-15