On January 24, 2024, the Second Department issued a decision in 88-18 Tropical Restaurante Corp. v. Utica First Ins. Co., 2024 NY Slip Op. 00289, holding that a motion to dismiss a claim for a declaratory judgment can be considered to be a motion for judgment on that claim in the defendant’s favor, explaining:
A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration. Where a cause of action is sufficient to invoke the court’s power to render a declaratory judgment as to the rights and other legal relations of the parties to a justiciable controversy, a motion to dismiss that cause of action should be denied. However, upon a motion to dismiss for failure to state a cause of action, a court may reach the merits of a properly pleaded cause of action for a declaratory judgment where no questions of fact are presented. Under such circumstances, the motion to dismiss the cause of action for failure to state a cause of action should be treated as one seeking a declaration in the defendant’s favor and treated accordingly. Here, the complaint adequately set forth a cause of action for declaratory relief, and the insurer’s submissions failed to dispel all factual issues regarding the merits of that cause of action. Accordingly, the Supreme Court properly denied dismissal of the cause of action for a declaratory judgment pursuant to CPLR 3211(a).
(Internal quotations and citations omitted).