Opinion
September 21, 1978
Appeal from an order of the Supreme Court at Special Term, entered June 24, 1977 in Delaware County, which denied defendant's motion to dismiss plaintiff's complaint. Defendant's moving papers did not establish that plaintiff's former action under the Lien Law had been resolved on the merits. Since it was not contended that the present contract action between the same parties was commenced beyond the ordinary period limited therefor, Special Term had no reason to consider the applicability of CPLR 205 (subd [a]) to the situation presented and correctly denied defendant's motion (see Utica Sheet Metal Corp. v Myers-Laine Corp., 45 A.D.2d 116, 118). We have examined defendant's remaining argument and find it to be without merit. Order affirmed, with costs. Sweeney, J.P., Kane, Larkin, Mikoll and Herlihy, JJ., concur.