Espinoza v. Fowler-Daley Owners, Inc. , 154 A.D.3d 405 ( 2017 )

Espinoza v Fowler-Daley Owners, Inc. (2017 NY Slip Op 06881)

Espinoza v Fowler-Daley Owners, Inc.

2017 NY Slip Op 06881

Decided on October 3, 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 October 3, 2017
Sweeny, J.P., Renwick, Kapnick, Kern, Moulton, JJ.

4468 305358/14

[*1]Edgard Espinoza, Plaintiff-Appellant,

v

Fowler-Daley Owners, Inc., et al., Defendants-Respondents, Flag Waterproofing and Restoration, LLC, Defendant.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.

Brody, O'Connor & O'Connor, New York (Magdalene P. Skountzos of counsel), for respondents.

Appeal from order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered August 19, 2016, which denied plaintiff's motion for summary judgment on liability without prejudice to renew after the determination of outstanding discovery motions and the completion of discovery, unanimously dismissed, without costs, as academic.

There is no reason to entertain this appeal because, after the outstanding discovery was completed, the motion court granted plaintiff's motion to renew his summary judgment motion, which had been denied without prejudice to renew. No appeal lies from an order or judgment that has been superseded by a subsequent order or judgment, as the initial order or judgment has become academic (see Makastchian v Oxford Health Plans , 270 AD2d 25 [1st Dept 2000]; Matter of Niagara Mohawk Power Corp. v Town of Tonawanda Assessor , 219 AD2d 883 [4th Dept 1995]; see also 10 Carmody-Wait 2d, NY Prac § 70:31 at 50-51). Here, deciding the motion on the merits renders the question raised on this appeal (whether the motion court correctly determined that plaintiff's motion was premature) entirely academic (see e.g. Interboro Mut. Indem. Ins. Co. v Gatterdum , 163 AD2d 788 [3d Dept 1990] [Where trial court grants a motion to reargue, the original order is superseded and appeal rendered academic]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 3, 2017

CLERK