Gulczynski v. Kirst

Order unanimously reversed, without costs of this appeal to any party, and motion granted, without costs. Memorandum: It now appears that the liens were vacated for failure to file notices of pendency. It also appears that the plaintiff may have a cause of action in contract that is not alleged in the complaint. However, the liens were vacated after these motions were submitted to Special Term and therefore the Special Term Justice had no opportunity to consider this phase of these matters. This dismissal is without prejudice to bringing any other cause of action that plaintiff may have against the defendant. (Appeal from an order of Erie Special Term denying motion to dismiss complaint.) Present — Williams, P. J., Bastow, Henry, Noonan and Del Veechio, JJ.