Judgment, Supreme Court, New York County, entered on January 21, 1971, unanimously modified, on the law, to the extent of striking therefrom the decretal paragraph which grants defendant's cross motion to dismiss the complaint, and, as so modified, affirmed, without costs and without disbursements. Since the court granted defendant's cross motion for summary judgment and declared the rights of the parties, it was error to direct a dismissal of the complaint. (See Lanza v. Wagner, 11 N.Y.2d 317, 334; New York Sporting Arms Assn. v. City of New York, 31 A.D.2d 793, and cases cited therein.)
Concur — Stevens, P.J., Capozzoli, Markewich, Nunez and Eager, JJ.