MURRAY v. NETZ 642 96TH STREET LLC (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for breach of the warranty of habitability, the plaintiff appeals from an amended order of the Supreme Court, Kings County (Saul Stein, J.), dated May 2, 2024.  The amended order (1) granted that branch of the defendants' motion which was, in effect, pursuant to CPLR 5015(a)(4) to vacate an order of the same court (Richard J. Montelione, J.) dated December 9, 2020, granting the plaintiff's motion for leave to enter a default judgment against the defendants, (2) upon vacatur of the order dated December 9, 2020, granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against the defendant NETZ 642 E. 96th Street, LLC, and (3) referred the matter to a referee for a hearing to determine the validity of service of process upon the defendant David Lipsh.

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

The appeal from the amended order dated May 2, 2024, must be dismissed because that order was superseded by a second amended order of the same court dated May 22, 2024 (see Matter of Kessel–Crawley v. Hodges, 63 A.D.3d 838, 838, 880 N.Y.S.2d 500).  The issues raised on the appeal from the amended order are brought up for review and have been considered on a related appeal from the second amended order (see Murray v. NETZ 642 E. 96th Street, LLC, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2026 WL 2336275 [Appellate Division Docket No. 2024–10924;  decided herewith] ).

CHAMBERS, J.P., DOWLING, WAN and MCCORMACK, JJ., concur.