In an action inter alia to declare that defendants the Parr Company of Suffolk, Inc., and Suffolk Meadows Quarter Horse Racing Association, Inc., are subject to the Zoning Ordinance of the Town of Brook-haven and the New York State Building Code as adopted by said town in said defendant’s construction of a racetrack, plaintiff appeals from an order of the Supreme Court, Suffolk County, entered January 23, 1974, which (1) denied its motion for a preliminary injunction and (2) granted defendants’ motions to dismiss the complaint. Order nlodified, on the law, by striking therefrom the second and third decretal paragraphs and substituting therefor a provision denying the motions to dismiss the complaint and declaring that the above-mentioned defendants are not subject to the Zoning Ordinance of the Town of Brookhaven and the New York State Building Code as adopted by said town in said defendants’ construction of a racetrack. As so modified, order affirmed, without costs. When, in an action for declaratory judgment, the plaintiff is not entitled to the declaration sought, the complaint should not be dismissed but the court should declare the parties’ rights with respect to the subject matter of the litigation (Lanza v. Wagner, U N Y 2d 317, 334)» Martuscello,
*555Acting P. J., Latham, Benjamin, Munder and Shapiro, JJ., concur. [76 Mise 2d 378.]