CLARITY CONNECT, INC. v AT T CORPORATION

Decided and Entered: February 10, 2005 96809 ________________________________ CLARITY CONNECT, INC., Appellant, v AT&T CORPORATION et al., Respondents. ________________________________ Calendar Date: January 12, 2005 Before: Cardona, P.J., Crew III, Mugglin, Rose and Kane, JJ. __________ Crossmore Law Office, Ithaca (Edward Y. Crossmore of counsel), for appellant. Phillips Lytle L.L.P., Rochester (Edmund C. Baird of counsel), for respondents. __________ Crew III, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered June 16, 2004 in Tompkins County, which granted defendants’ motion to dismiss the complaint. Plaintiff, an Internet service provider, commenced this declaratory judgment action in October 2003 seeking, insofar as relevant to this appeal, a determination as to the balance it owed defendants on an account created to provide plaintiff with telephone access to the Internet. Shortly thereafter, defendants instituted an action for a money judgment against plaintiff, seeking payment for outstanding balances allegedly owed on the account. Supreme Court granted defendants’ subsequent motion to dismiss plaintiff’s complaint, finding that defendants’ companion action afforded plaintiff a full opportunity to litigate its claims. This appeal by plaintiff ensued. The decision to entertain an action for declaratory judgment is a matter committed to the sound discretion of Supreme Court, which may decline to consider such relief where other adequate remedies are available (see CPLR 3001; Matter of Morgenthau v Erlbaum, 59 NY2d 143, 148 [1983], cert denied 464 US 993 [1983]). Inasmuch as defendants’ action for a money judgment, in which plaintiff has answered and counterclaimed, will permit a full resolution of plaintiff’s rights and obligations under its account with defendants, including its demand for certain credits and offsets, we agree with Supreme Court that plaintiff’s action seeking only declaratory relief as to those same issues would be of little, if any, utility or necessity. Accordingly, we discern no abuse of discretion in Supreme Court’s dismissal of plaintiff’s action. Cardona, P.J., Mugglin, Rose and Kane, JJ., concur. ORDERED that the order is affirmed, with costs.