Opinion
November 16, 1994
Appeal from the Supreme Court, Monroe County, Rosenbloom, J.
Present — Pine, J.P., Balio, Callahan, Davis and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Plaintiff commenced this action seeking a declaratory judgment and an injunction after defendants regraded a 20-foot wide parcel of land adjacent to plaintiff's property and over which plaintiff was granted a drainage license, i.e., "[t]he perpetual right and license to allow water from [his] lands * * * to drain on, over and through" defendants' adjoining property. After joinder of issue, plaintiff moved and defendants cross-moved for summary judgment. Supreme Court denied the requested relief. The court should have granted defendants' cross motion for summary judgment dismissing the complaint.
"The general rule is that a request for an injunction or a declaratory judgment is premature if the harm to the plaintiff is contingent upon events that may never occur" (Church of St. Paul St. Andrew v. Barwick, 67 N.Y.2d 510, 535, cert denied 479 U.S. 985, citing Matter of New York State Inspection, Sec. Law Enforcement Empls. v. Cuomo, 64 N.Y.2d 233, 240). Additionally, "[a] declaratory judgment action is appropriate only when there is a substantial legal controversy between the parties that may be resolved by a declaration of the parties' legal rights (see, CPLR 3001; De Veau v. Braisted, 5 A.D.2d 603, affd 5 N.Y.2d 236, affd 363 U.S. 144 * * *)" (Rice v. Cayuga-Onondaga Healthcare Plan, 190 A.D.2d 330, 333).
The record establishes that neither the regrading of the soil within the licensed area nor the construction undertaken by defendants exclusively upon their adjoining property has adversely affected plaintiff's drainage license (see, Quinta Doroteia v. Wagner, 141 A.D.2d 711). Thus, plaintiff failed to allege facts demonstrating a substantial legal controversy between the parties that may be determined by a declaration of the parties' legal rights. Therefore, we modify the order of Supreme Court by granting defendants' cross motion for summary judgment dismissing the complaint.