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Earth Energy Consultants, LLC v. Seneca County Industrial Development Agency

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


May 6, 2011

EARTH ENERGY CONSULTANTS, LLC, PLAINTIFF-APPELLANT,
v.
SENECA COUNTY INDUSTRIAL DEVELOPMENT AGENCY, SENECA COUNTY ECONOMIC DEVELOPMENT CORPORATION, AND ROBERT J. ARONSON, EXECUTIVE DIRECTOR, SENECA COUNTY INDUSTRIAL DEVELOPMENT AGENCY, DEFENDANTS-RESPONDENTS.

Appeal from a judgment of the Supreme Court, Seneca County (Dennis F. Bender, A.J.), entered June 2, 2010 in a declaratory judgment action. The judgment granted the motion of defendants for summary judgment dismissing the complaint and denied the cross motion of plaintiff to compel disclosure.

Earth Energy Consultants, LLC v Seneca County Indus. Dev. Agency

Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 6, 2011

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the provision dismissing the complaint and granting judgment in favor of defendants as follows: It is ADJUDGED and DECLARED that defendants have no duty to execute or to record an assignment to plaintiff of a portion of the overriding royalty interest in any oil and/or natural gas produced from the subject property and as modified the judgment is affirmed without costs.

Memorandum: We conclude that Supreme Court properly resolved the merits of the action in favor of defendants for the reasons stated in its decision. The court erred, however, in granting judgment to defendants dismissing the complaint rather than declaring the rights of the parties (see Maurizzio v Lumbermens Mut. Cas. Co., 73 NY2d 951, 954). We therefore modify the judgment accordingly. Entered: May 6, 2011 Patricia L. Morgan Clerk of the Court

20110506

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