Opinion
June 10, 1968
Motion by appellants, Steve Brody, Inc. and Aetna Casualty and Surety Company, for further reargument or for leave to appeal to the Court of Appeals. Motion denied. Upon the court's own motion, the memorandum decision of this court dated May 1, 1968 [ 30 A.D.2d 529], rendered on appellants' prior motion for reargument or for leave to appeal to the Court of Appeals, is amended to read as follows: "Motion by appellants for reargument or, in the alternative, for leave to appeal to the Court of Appeals. Motion granted to the extent of granting reargument; and, upon such reargument, the original determination of this court is adhered to. While the order extending the lien was invalid by reason of its entry after the expiration date of the lien, the action should not be dismissed ( Dittmar Explosives v. A.E. Ottaviano, Inc., 20 N.Y.2d 498). Even if the tenure of plaintiff's notice of lien was ineffectively extended, plaintiff's complaint is not to be dismissed without an opportunity to amend so as to replead within the framework of the trust provisions of the Lien Law ( Dittmar Explosives v. A.E. Ottaviano, Inc., supra)." Brennan, Acting P.J., Rabin, Hopkins, Munder and Martuscello, JJ., concur.