Merchants Insurance Co. of New Hampshire, Inc. v. Long Island Pet Cemetery, Inc.

Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied plaintiff insurer’s motion for a default judgment against those defendants who failed to appear in this action for a declaratory judgment. A " 'default judgment in a declaratory judgment action will not be granted on the default and pleadings alone for it is necessary that plaintiff establish a right to a declaration against * * * a defendant’ ” (Levy v Blue Cross & Blue Shield, 124 AD2d 900 , 902; see, 43 NY Jur 2d, Declaratory Judgments, § 57). Plaintiff failed to establish its right to the declaration sought. Moreover, even if plaintiff had established its right to a declaration, the decision whether to grant a declaratory judgment rests within the sound discretion of the court (CPLR 3001) and is "dependent upon facts and circumstances rendering it useful and necessary. [The court’s] discretion must be exercised judicially and with care” (James v Alderton Dock Yards, 256 NY 298 , 305). Denial of the default judgment was proper because the declaratory relief requested clearly affects the rights of other parties not alleged to be in default (see, Rivera v LaPorte, 120 Misc 2d 733 , 735). (Appeal from Order of Supreme Court, Erie County, Francis, J.—Default Judgment.) Present—Green, J. P., Balio, Lawton, Wesley and Boehm, JJ.