
    Lincoln Gibbs Company, Appellant, v City of Rochester, Respondent.
    [604 NYS2d 849]
   —Judgment unanimously modified on the law and as modified affirmed without costs and judgment granted in accordance with the following Memorandum: The court should not have granted defendant’s cross motion for summary judgment dismissing the complaint but rather should have declared the rights of the parties (see, e.g., Pless v Town of Royalton, 185 AD2d 659, 660, affd 81 NY2d 1047). We modify the judgment, therefore, to reinstate the complaint and to declare that defendant is entitled to assess against plaintiff the replacement cost of the concrete slab at issue. (Appeal from Judgment of Supreme Court, Monroe County, Galloway, J.—Declaratory Judgment.) Present—Pine, J. P., Fallon, Boomer, Davis and Boehm, JJ.  