Opinion
10-03-2017
Edgard ESPINOZA, Plaintiff–Appellant, v. FOWLER–DALEY OWNERS, INC., et al., Defendants–Respondents, Flag Waterproofing and Restoration, LLC, Defendant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Brody, O'Connor & O'Connor, New York (Magdalene P. Skountzos of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Brody, O'Connor & O'Connor, New York (Magdalene P. Skountzos of counsel), for respondents.
There is no reason to entertain this appeal because, after the outstanding discovery was completed, the motion court granted plaintiff's motion to renew his summary judgment motion, which had been denied without prejudice to renew. No appeal lies from an order or judgment that has been superseded by a subsequent order or judgment, as the initial order or judgment has become academic (see Makastchian v. Oxford Health Plans, 270 A.D.2d 25, 704 N.Y.S.2d 44 [1st Dept.2000] ; Matter of Niagara Mohawk Power Corp. v. Town of Tonawanda Assessor, 219 A.D.2d 883, 632 N.Y.S.2d 53 [4th Dept.1995] ; see also 10 Carmody–Wait 2d, N.Y. Prac. § 70:31 at 50–51 ). Here, deciding the motion on the merits renders the question raised on this appeal (whether the motion court correctly determined that plaintiff's motion was premature) entirely academic (see
e.g. Interboro Mut. Indem. Ins. Co. v. Gatterdum, 163 A.D.2d 788, 558 N.Y.S.2d 749 [3d Dept.1990] [Where trial court grants a motion to reargue, the original order is superseded and appeal rendered academic] ).
SWEENY, J.P., RENWICK, KAPNICK, KERN, and MOULTON, JJ., concur.