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A MOTION TO DISMISS AN ACTION FOR A DECLARATORY JUDGMENT FOR FAILURE TO STATE A CAUSE OF ACTION, WHERE THERE ARE NO QUESTIONS OF FACT, SHOULD BE TREATED AS A MOTION FOR A DECLARATION IN DEFENDANT’S FAVOR (SECOND DEPT).

The Second Department noted that where a motion to dismiss an action for declaratory judgment is made, the motion should be deemed a request for a declaration in defendant’s favor:

The courts may consider “the merits of a properly pleaded cause of action for a declaratory judgment upon a motion to dismiss for failure to state a cause of action 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” … . Astoria Landing, Inc. v New York City Council, 2020 NY Slip Op 05174, Second Dept 9-30-20

 

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