DOUGLAS SMITH FABRICATION AND REPAIR v. GASTHAUS (1999)

In an action brought by motion pursuant to CPLR 3213 for summary judgment in lieu of complaint to recover on a promissory note, the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Cacciabaudo, J.), dated October 17, 1997, which denied his motion for summary judgment in lieu of complaint and granted the defendants' cross motion to dismiss the action on the ground of lack of personal jurisdiction, and (2) a decision of the same court, dated December 4, 1997.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that the appeal from the order is dismissed as academic;  and it is further,

ORDERED that the defendants are awarded one bill of costs.

By order dated October 17, 1997, the Supreme Court, denied the plaintiffs' motion for summary judgment in lieu of complaint and granted the defendants' cross motion to dismiss the action on the ground of lack of personal jurisdiction.   The plaintiffs subsequently re-served the papers upon the defendants.   By decision dated December 4, 1997, the second service was held to be proper, but it was determined that the defendants were entitled to summary judgment dismissing the complaint.   Thus, any argument as to the propriety of the court's initial order has been rendered academic.   This matter does not warrant the invocation of an exception to the mootness doctrine (see, Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876), and thus we dismiss the appeal from the order as academic (see, Matter of Dominici v. MacClean, 188 A.D.2d 532, 591 N.Y.S.2d 351).

MEMORANDUM BY THE COURT.