Merchants Insurance Company of New Hampshire, Inc., Appellant, v. Long Island Pet Cemetery, Inc., et al., Defendants, and Elizabeth Jones et al., on Behalf of Themselves and All Other Persons Similarly Situated, et al., Respondents

Merchants Insurance Company of New Hampshire, Inc., Appellant, v Long Island Pet Cemetery, Inc., et al., Defendants, and Elizabeth Jones et al., on Behalf of Themselves and All Other Persons Similarly Situated, et al., Respondents. [616 NYS2d 299] [MAJORITY] 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.