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AN ACTION FOR A DECLARATORY JUDGMENT SHOULD NOT BE DISMISSED AT THE PRE-ANSWER STAGE BASED UPON A FINDING THE PLAINTIFF MAY NOT BE ENTITLED TO THE DECLARATORY RELIEF (SECOND DEPT).

The Second Department, reversing Supreme Court, explained that an action for a declaratory judgment should not be dismissed at the pre-answer stage when the pleading standards are met:

… [T]he plaintiffs alleged that certain provisions of Nassau County Administrative Code, chapter XXI, title D-21-Drycleaners and Laundromats were unconstitutional, unconstitutionally vague, served no legitimate purpose, and lacked any substantial relationship to the legislative intent … . …

” 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 disposition'” … . “[W]here 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” … .

Here, the complaint was 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 (see CPLR 3001 …). A complaint will not be dismissed pursuant to CPLR 3211(a)(7) merely because the plaintiffs may not be entitled to a declaration in their favor … . Laundry Palace U, Inc. v Nassau County, 2020 NY Slip Op 03005, Second Dept 5-27-20

 

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PLAINTIFF RAISED QUESTIONS OF FACT WHETHER THE POLICE HAD PROBABLE CAUSE TO... FORECLOSURE SALE EXTINGUISHES THE RIGHT TO REDEEM (SECOND DEPT).