POSTIGLIONE v. SACKS SACKS LLP (2024)

DECISION & ORDER

In an action to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Edgar G. Walker, J.), dated April 17, 2020.  The order, insofar as appealed from, denied that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint.

Motion by the respondents to dismiss the appeal on the ground that it has been rendered academic and to impose a sanction upon the appellants in the form of costs and an attorney's fee.  By decision and order on motion of this Court dated June 25, 2021, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Separate motion by the respondents, in effect, to dismiss the appeal on the ground that it has been rendered academic and for an award of costs and an attorney's fee.  By decision and order on motion of this Court dated March 23, 2022, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motions and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that those branches of the respondents' motions which were to dismiss the appeal as academic are granted;  and it is further,

ORDERED that the appeal is dismissed;  and it is further,

ORDERED that those branches of the respondents' motions which were to impose sanctions in the form of costs and an attorney's fee are denied;  and it is further,

ORDERED that one bill of costs is awarded to the respondents.

In 2019, the plaintiffs commenced an action against the defendants to recover damages for legal malpractice.  The defendants moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint.  In an order dated April 17, 2020, the Supreme Court, among other things, denied that branch of the motion.  The defendants appeal.

After the instant appeal was perfected, the plaintiffs served an amended complaint, and the defendants moved, inter alia, pursuant to CPLR 3211(a) to dismiss the amended complaint.  In an order dated January 19, 2022, the Supreme Court, among other things, denied that branch of the motion.

In a related appeal, this Court affirmed the order dated January 19, 2022, insofar as appealed from (see Postiglione v. Sacks & Sacks, LLP, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 WL 4964792 [Appellate Division Docket No. 2022–01198;  decided herewith]).  Since the original complaint has been superseded by the amended complaint, the defendants' challenges to the original complaint and the order dated April 17, 2020, have been rendered academic, and the appeal therefrom must be dismissed (see Oppedisano v. D'Agostino, 196 A.D.3d 500, 501, 146 N.Y.S.3d 829;  Gotlin v. City of New York, 90 A.D.3d 605, 608, 936 N.Y.S.2d 208;  Elegante Leasing, Ltd. v. Cross Trans Svc, Inc., 11 A.D.3d 650, 651, 782 N.Y.S.2d 919).

CONNOLLY, J.P., FORD, LOVE and MCCORMACK, JJ., concur.