ESPINOZA v. SUZMAN (2022)

ORDERED that the appeal is dismissed as moot.

The summons with endorsed complaint in this action states that plaintiff is seeking to recover the total principal sum of $95,600 for “Personal Injuries,” “Failure to provide proper services,” “Loss of time for work,” “Dishonored Check,” and “Monies Due.” Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) and (8). By order entered October 25, 2021, the Civil Court (Nicholas W. Moyne, J.) granted defendant's motion finding that “[p]laintiff did not serve the defendant pursuant to the CPLR.” On November 4, 2021, plaintiff filed a second action against defendant in the Civil Court (index No. CV-026562-21/KI), in which the endorsed complaint set forth the same five claims as the endorsed complaint in the instant action. Defendant accepted service of the second summons with endorsed complaint. Plaintiff then filed a notice of appeal from the October 25, 2021 order on November 5, 2021.

A court “may take judicial notice of undisputed court records and files” (Matter of Khatibi v Weill, 8 AD3d 485, 485 [2004]; see Matter of Allen v Strough, 301 AD2d 11, 18 [2002]; Ptasznik v Schultz, 247 AD2d 197 [1998]). By instituting the second action, of which we take judicial notice, plaintiff effectively abandoned the instant action, thereby mooting the appeal from the Civil Court's October 25, 2021 order (see Jarmuth v Wagner, 190 AD3d 527 [2021]; Matter of Allstate Ins. Co. v Torrales, 186 AD2d 649 [1992]; Sherrill v Grayco Bldrs., 99 AD2d 965, 966-967 [1984], affd 64 NY2d 261 [1985]).

Accordingly, the appeal is dismissed as moot.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.