Opinion
November 30, 1998
Appeal from the Supreme Court, Queens County (O'Donoghue, J.).
Ordered that the appeal is dismissed as academic, with costs to the appellants.
The plaintiff made an ex parte application for expedient service pursuant to CPLR 308 (5). In an order dated February 15, 1996, the Supreme Court, Queens County, granted the application and permitted service upon the appellants by publication. Following service by publication, the appellants made a motion, inter alia, to vacate the February 15, 1996, order. The order on appeal denied the appellants' motion. After the appellants perfected this appeal, the plaintiff voluntarily made its own motion to vacate the February 15, 1996, order. In an order dated September 1, 1998, the Supreme Court, Queens County (Schmidt, J.), granted the plaintiff's motion, and dismissed the complaint as against the appellants. Thus, since the subject matter of the appellants' appeal is no longer at issue, the appeal is academic. However, the appellants should be awarded the costs of the instant appeal since the plaintiff did not make its motion to vacate until after the instant appeal was perfected.
Bracken, J. P., Copertino, Santucci and Altman, JJ., concur.