Oppedisano v. D'Agostino , 2021 NY Slip Op 04234 ( 2021 )

Oppedisano v D'Agostino (2021 NY Slip Op 04234)

Oppedisano v D'Agostino

2021 NY Slip Op 04234

Decided on July 7, 2021

Appellate Division, Second 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 July 7, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY
PAUL WOOTEN, JJ.

2018-06901
(Index No. 3277/16)

[*1]Maurizio Oppedisano, et al., appellants,

v

Heather D'Agostino, et al., defendants, Anthony D'Agostino, et al., respondents.

Jack Angelou, Mineola, NY, for appellants.

Moritt Hock & Hamroff LLP, Garden City, NY (Michael Cardello III and Julia Gavrilov of counsel), for respondent Anthony D'Agostino.

Barnes & Barnes, P.C., Melville, NY (Leo K. Barnes, Jr., and Ryan J. McMahon of counsel), for respondent Marie Borque.

DECISION & ORDER

In an action, inter alia, to recover damages for fraud, misrepresentation, and conversion, the plaintiffs appeal from an order of the Supreme Court, Queens County (Rudolph E. Greco, Jr., J.), dated March 16, 2018. The order granted the separate motions of the defendants Marie Borque and Anthony D'Agostino pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them.

ORDERED that the appeal is dismissed as academic, without costs or disbursements.

As is relevant to the appeal, in 2016, the plaintiffs commenced this action against, among others, the defendants JPMorgan Chase Bank, N.A., sued herein as JP Morgan Chase Bank (hereinafter Chase), Marie Borque, and Anthony D'Agostino to recover damages, among other things, for fraud, misrepresentation, and conversion. Chase moved pursuant to CPLR 3211(a)(1), (5) and (7) to dismiss the complaint insofar as asserted against it, and the plaintiffs cross-moved pursuant to CPLR 3025(b) for leave to amend the complaint. By order dated September 22, 2017, the Supreme Court granted Chase's motion and denied the plaintiffs' cross motion in its entirety. Thereafter, Borque and D'Agostino separately moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them. In an order dated March 16, 2018 (hereinafter the March 2018 order), the Supreme Court granted the motions. The plaintiffs appeal from the March 2018 order.

In a related appeal, this Court, among other things, is modifying the September 22, 2017 order so as to grant that branch of the plaintiffs' cross motion which was for leave to amend the complaint insofar as asserted against, among others, Borque and D'Agostino (Oppedisano v D'Agostino, _____ AD3d _____ [Appellate Division Docket No. 2018-02622; decided herewith]). Since the original complaint has been superseded by the amended complaint with respect to these defendants, Borque's and D'Agostino's challenges to the original complaint and the March 2018 order have been rendered academic, and this appeal therefrom must be dismissed (see Elegante [*2]Leasing, Ltd v Cross Trans Svc, Inc., 11 AD3d 650, 650-651; see also Mees v Buiter, 186 AD3d 1670, 1672-1673).

DILLON, J.P., HINDS-RADIX, DUFFY and WOOTEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court