Bermudez v. Peuser ( 2019 )

Bermudez v Peuser (2019 NY Slip Op 01005)

Bermudez v Peuser

2019 NY Slip Op 01005

Decided on February 8, 2019

Appellate Division, Fourth 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 February 8, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.

88 CA 18-01657

[*1]JOSE M. BERMUDEZ, JR., PLAINTIFF-RESPONDENT,

v

AARON J. PEUSER AND MARIE T. ENTWISTLE, DEFENDANTS-APPELLANTS.

LAW OFFICES OF JOHN TROP, DEWITT (THERESA M. ZEHE OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

LAW OFFICES OF MARC JONAS, UTICA (MARC JONAS OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

Appeal from an order of the Supreme Court, Oneida County (David A. Murad, J.), entered January 10, 2018. The order, inter alia, directed defendants to produce the written statement of a nonparty witness.

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: Defendants appeal from an order that, in effect, directed disclosure of a nonparty's written statement. An appeal from a discovery order is rendered moot, however, when the disputed material is disclosed before the appeal is decided (see Vandashield Ltd v Isaacson, 146 AD3d 552, 555 [1st Dept 2017]; Khoury v Chouchani, 27 AD3d 1071, 1073 [4th Dept 2006]; Matter of Franklin [International Bus. Machs. Corp.], 215 AD2d 759, 759 [2d Dept 1995]; cf. Matter of Camara v Skanska, Inc., 150 AD3d 548, 549 [1st Dept 2017]; but see Matter of New York City Asbestos Litig., 109 AD3d 7, 12 n 2 [1st Dept 2013], lv dismissed 22 NY3d 1016 [2013]). Here, defendants disclosed the disputed statement during the pendency of this appeal. We therefore dismiss the appeal as moot (see Vandashield Ltd, 146 AD3d at 553; Khoury, 27 AD3d at 1072; Franklin, 215 AD2d at 759).

Entered: February 8, 2019

Mark W. Bennett

Clerk of the Court