Judgment of the same court and Justice, entered June 15, 1981, modified, on the law, with costs, to substitute, for the first decretal paragraph thereof, by which the complaint was dismissed, a decretal paragraph to declare that defendant-respondent is not obligated or bound to pay plaintiffs-appellants pursuant to the subcontracts entered into between plaintiffs-appellants and Peck-Morse/Diesel, and otherwise affirmed for the reasons stated by Justice Beatrice Shainswit at Special Term. "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 N.Y.2d 317, 334), and "the motion [for summary judgment dismissing the complaint] should be taken as defendant's motion for a declaration in [its] favor and treated accordingly." (Seigel, New York Practice, § 440, p 584.) (See, also, 3 Weinstein-Korn-Miller, N.Y. Civ Prac, par 3001.13, p 30-97.)
Concur — Kupferman, J.P., Birns, Sullivan, Markewich and Lupiano, JJ.