Opinion
January 27, 1984
Appeal from the Supreme Court, Chemung County, Crew, J.
Present — Dillon, P.J., Doerr, Denman, O'Donnell and Moule, JJ. [ 119 Misc.2d 923.]
Judgment unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: Plaintiff instituted this declaratory judgment action seeking a determination that defendant could not invoke a due-on-sale acceleration clause contained in a bond and mortgage executed by and between the parties in the event of a transfer of the mortgaged property. Special Term found that the due-on-sale clause was enforceable by defendant upon any conveyance of the mortgaged property and dismissed plaintiff's complaint. We agree with Special Term's decision regarding the enforceability of the clause, but note that, inasmuch as this is an action for a declaratory judgment, Special Term should have declared the due-on-sale clause valid and enforceable instead of dismissing plaintiff's complaint ( Lanza v Wagner, 11 N.Y.2d 317, 334, app dsmd 371 U.S. 74, cert. den. 371 U.S. 901; Miller v Braun, 89 A.D.2d 787).