ROEBUCK v. ROEBUCK

Appeal by defendant from an order entered in Supreme Court, New York County on March 11, 1970, which granted defendant's motion to dismiss the complaint with leave to plaintiff to serve an amended complaint, unanimously dismissed, without costs and without disbursements, without prejudice to any timely corrective application addressed to the amended complaint. The order appealed from granted the defendant's motion to dismiss the complaint for insufficiency of allegations and did not concern itself with the alternative relief sought by defendant pursuant to CPLR 3024 (subd. [b]). Having determined that the complaint was fatally defective for insufficiency, it was unnecessary for Special Term to pass on the request for alternative relief. Since the complaint was dismissed, appellant is not an aggrieved party by virtue of failure to grant the alternative relief sought by defendant, and the appeal must therefore be dismissed. Any corrective motion defendant is advised to make, must timely be addressed to the amended complaint.

Concur — Eager, J.P., Capozzoli, McGivern, Markewich and McNally, JJ.