Opinion
May 31, 1984
Appeal from an order of the Supreme Court at Special Term (Mercure, J.), entered January 12, 1983 in Saratoga County, which denied defendants' motion to, inter alia, dismiss the complaint or a specific portion thereof.
¶ Plaintiffs commenced this action which was construed to state (1) a petition for CPLR article 78 relief, (2) a complaint for a declaratory judgment, and (3) a complaint for money damages. In September of 1982, defendants moved to foreclose plaintiffs from offering proof with respect to matters about which discovery was demanded but not received, and to dismiss the complaint, or alternatively, specific portions thereof. Special Term denied the motion in its entirety, but did not specifically address so much of the motion as sought to dismiss the complaint. ¶ On appeal, this court agreed with the denial of the portion of the motion dealing with discovery ( Socha Bldrs. v Town of Clifton Park, 99 A.D.2d 890). With regard to the portion of the motion seeking complaint dismissal, it was uncertain whether denial of such motion was premised on the possible law of the case implications of a prior order or on the merits. This court held that the doctrine of law of the case did not mandate denial of the motion to dismiss, withheld decision on the appeal and remitted the matter to Special Term for consideration of that portion of the motion ( id., at p 891). ¶ Special Term, on April 19, 1984, considered the matter on the merits and granted the motion to dismiss the complaint. Defendants are the appellants on this appeal and, since they are no longer aggrieved by Special Term's determination, their appeal must be dismissed (CPLR 5511). ¶ Appeal dismissed, without costs. Mahoney, P.J., Main, Mikoll and Yesawich, Jr., JJ., concur.