
    Natalie E. Pavia, Appellant, v Maxwell T. Cohen, Respondent.
   Judgment, Supreme Court, New York County, entered June 3, 1980, granting defendant’s motion for summary judgment unanimously modified, on the law, without costs or disbursements, to declare that plaintiff is not entitled to one third of her brother’s net estate. The appeal from the order of said court entered on April 30, 1980 is dismissed, without costs, as having been subsumed in the appeal from the judgment. We agree with Special Term that the complaint is without merit. Inasmuch, however, as this is an action for a declaratory judgment, a declaration should have been made in defendant’s favor. (See National Assn, of Installment Cos. v Grant, 37 AD2d 955.) Concur — Birns, J. P., Sullivan, Ross, Markewich and Silverman, JJ.  