FB Transit Road Corp. v. D.R.T. Construction Co.

Appeal from order insofar as it denied motion to dismiss complaint unanimously dismissed and order modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying defendant’s and intervenor’s motions to vacate the notice of pendency. The instant action, seeking declaratory relief, does not directly "affect the title to, or the possession, use or enjoyment of, real property” (CPLR 6501; see, 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313). We modify the order on appeal, therefore, by granting defendant’s and intervenor’s motions to vacate the notice of pendency. The court’s failure to rule on that part of DRT’s motion seeking dismissal of the complaint is deemed a denial (see, Brown v U.S. Vanadium Corp., 198 AD2d 863, 864). Because an amended complaint has been served, DRT’s appeal from the order insofar as it denied that part of DRT’s motion is moot (see, Chalasani v Neuman, 64 NY2d 879; City of Olean v New York State Envtl. Facilities Corp., 213 AD2d 1018; Smith v Russell Sage Coll., 78 AD2d 913, affd 54 NY2d 185). (Appeals from Order of Supreme Court, Erie County, Glownia, J.—Vacate Notice of Pendency.) Present—Green, J. P., Lawton, Wesley, Davis and Boehm, JJ.