Opinion
November 4, 1983
Appeal from the Supreme Court, Onondaga County, Lynch, J.
Present — Dillon, P.J., Doerr, Denman, O'Donnell and Schnepp, JJ.
Order reversed, without costs, all concur, O'Donnell, J., not participating, and matter remitted to Supreme Court, Onondaga County, for further proceedings, in accordance with the following memorandum: The record on appeal contains a transcript of a deposition which was not before Special Term but which contains evidence that is both relevant and important to a determination of petitioner's motion to vacate the order of attachment. Although the parties have stipulated to the correctness of the record pursuant to CPLR 5532, we have decided, in the exercise of discretion, not to consider this evidence. Nevertheless, in the interest of justice, plaintiff should be afforded an opportunity to present such proof in opposition to the motion ( Murrer v Stoltz, 23 A.D.2d 810).