PNY III, LLC v. Axis Design Group International, LLC , 148 A.D.3d 550 ( 2017 )

Pny III, LLC v Axis Design Group Intl., LLC (2017 NY Slip Op 01993)

Pny III, LLC v Axis Design Group Intl., LLC

2017 NY Slip Op 01993

Decided on March 21, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 21, 2017
Acosta, J.P., Renwick, Manzanet-Daniels, Webber, Gesmer, JJ.

159743/14 3446 151873/15 3445

[*1]PNY III, LLC formerly known as PNY III, LP, et al., Plaintiffs,

v

Axis Design Group International, LLC, et al., Defendants-Respondents, ULM II Holding Corp, Defendant-Appellant.



United Church Insurance Association as subrogee of Church of the Covenant Presbyterian, Plaintiff,

v

Axis Design Group International, LLC, et al., Defendants-Respondents, ULM II Holding Corp, Defendant-Appellant.

Haworth Coleman & Gerstman, LLC, New York (Barry Gerstman of counsel), for appellant.

Byrne & O'Neill, LLP, New York (Albert Westey McKee of counsel), for respondents.

Appeals from orders, Supreme Court, New York County (Paul Wooten, J.), entered November 16, 2015, which granted the motions of defendants Axis Design Group International LLC (Axis) and Joseph V. Lieber, P.E., pursuant to CPLR 3211(a)(1) and (7), dismissing plaintiff PNY III, LLC f/k/a PNY III, LP and American Guarantee and Liability Insurance Company a/s/o PNY III, LLC f/k/a PNY III, LP,'s (PNY) complaint as against them, and dismissing plaintiff United Church Insurance Association a/s/o Church of the Covenant Presbyterian's (United Church) complaint as against them, unanimously dismissed, without costs, as moot.

In each of these appeals, ULM, which appeals the respective dismissals of plaintiffs PNY's and United Church's direct claims as against Axis and Lieber, is not an aggrieved party (see Rodriguez v Heritage Hills Socy., Ltd., 141 AD3d 482, 483 [1st Dept 2016), citing Hecht v City of N.Y., 60 NY2d 57 [1983]; see also Rojas v Paine, 125 AD3d 742 [2d Dept 2015]). Moreover, PNY settled its action with Axis and Lieber, releasing those defendants and executing a stipulation of discontinuance with prejudice, and the Church has discontinued, with prejudice, its action against Axis and Leiber. Thus, even if ULM were an aggrieved party, these appeals must nevertheless be dismissed as moot (see Matter of Anonymous v New York City Health & [*2]Hosps. Corp., 70 NY2d 972, 974 [1988]).

We have considered ULM's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 21, 2017

CLERK