Jarmuth v. Wagner

Jarmuth v Wagner (2021 NY Slip Op 00236)

Jarmuth v Wagner

2021 NY Slip Op 00236

Decided on January 14, 2021

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 and Entered: January 14, 2021
Before: Manzanet-Daniels, J.P., Gische, Kapnick, Singh, Mendez, JJ.

Index No. 155922/18 Appeal No. 12877 Case No. 2019-5347

[*1]Sandra Jarmuth, Plaintiff-Appellant,

v

Steven Wagner et al., Defendants-Respondents.

Law Office of Errol Brett, Floral Park (Errol A. Brett of counsel), for appellant.

Furman Kornfeld & Brennan LLP, New York (Spencer A. Richards of counsel), for respondents.

Appeal from order, Supreme Court, New York County (Andrew Borrok, J.), entered June 11, 2019, which, insofar as appealed from as limited by the briefs, granted defendants' motion to dismiss the derivative claim for legal malpractice based on plaintiff's failure to comply with Business Corporation Law § 626 by setting forth with particularity her efforts to get defendant Co-op Board to initiate a malpractice action against defendant law firm, without prejudice to plaintiff reasserting the claim, unanimously dismissed, without costs, as moot.

We take judicial notice of the fact that on December 6, 2019, plaintiff initiated a new action in the same court by filing a second complaint setting forth a derivative claim for legal malpractice (Sandra Jarmuth v Steven Wagner et al., Sup Ct, NY County, index No. 161816/2019), which reasserts the allegations of the complaint here, and further asserts the allegation the motion court found was necessary to satisfy the Business Corporation Law § 626 demand requirement. By instituting the second action, plaintiff effectively abandoned the instant action, thereby mooting the appeal from the order dismissing, without prejudice, her derivative legal malpractice claim (see Sherrill v Grayco Bldrs., 99 AD2d 965 [1st Dept 1984], affd 64 NY2d 261 [1985]; see also CRAFT EM CLO 2006-1, Ltd. v Deutsche Bank AG, 139 AD3d 638, 638-639 [1st Dept 2016]). THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 14, 2021