Adelphia Lamps & Shades, Inc. v. 41 Madison Avenue Co. , 84 A.D.2d 501 ( 1981 )

Judgment, Supreme Court, New York County (Tyler, J.), entered September 3, 1980, unanimously modified, on the law, to the extent of striking therefrom the third decretal paragraph, and otherwise affirmed, without costs. In the second decretal paragraph, Special Term “ordered and adjudged that the [subject] escalation clauses contained in the lease agreements of [plaintiffs] * * * are not unconscionable”.^* The stricken third paragraph, however, went on to dismiss the complaint. “It was error * * * to dismiss the complaint in this action for a declaratory judgment merely because the plaintiffs were not entitled to the declaration sought by them” (Lanza v Wagner, 11 NY2d 317, 334); and “the motion [to dismiss] should be taken as defendant’s motion for a declaration in his favor and treated accordingly” (Siegel, New York Practice, §440, p 584; see, also, 3 Weinstein-Korn-Miller, NY Civ Prac, par 3001.13, p 30-97). Concur — Murphy, P. J., Markewich, Silverman and Fein, JJ.

* We interpret this as meaning that the court so “declared” (CPLR art 30), though that word is not used, nor, indeed is it found in the complaint’s prayer. Our interpretation of what Special Term meant by this is bolstered by the memorandum opinion, which grants summary judgment “to the extent of declaring on the merits that Article 23 [of the leases] is not unconscionable”. Though not such in form, this is a declaratory judgment action, incorrectly described in appellants’ CPLR 5531 statement as one seeking “reformation of escalation clauses”.