Frank L. Ciminelli Construction Co. v. City of Buffalo , 110 A.D.2d 1075 ( 1985 )

Defendant and third-party plaintiff Clarence has not appealed from the dismissal of its third-party complaint and, because a reversal of this dismissal is not necessary in order to give full relief to appellants here, we cannot as an appellate court reinstate the third-party complaint (see, Hecht v City of New York, 60 NY2d 57, 61-63). Clarence may, however, move at Special Term to vacate the dismissal pursuant to CPLR 5015 (a) (5); because the foundation for dismissal of the third-party complaint has been destroyed by our reinstatement of the complaint herein, such motion should be granted in the interest of justice (see, McMahon v City of New York, 105 AD2d 101; Feldberg v Howard Fulton St., 44 Misc 2d 218, affd 24 AD2d 704). (Appeal from order of Supreme Court, Erie County, Fudeman, J. — dismiss complaint.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and O’Donnell, JJ.