Opinion
July 14, 1995
Appeal from the Supreme Court, Erie County, Glownia, J.
Present — Green, J.P., Lawton, Wesley, Davis and Boehm, JJ.
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 N.Y.2d 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 A.D.2d 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 N.Y.2d 879; City of Olean v. New York State Envtl. Facilities Corp., 213 A.D.2d 1018; Smith v. Russell Sage Coll., 78 A.D.2d 913, affd 54 N.Y.2d 185).